Perspectives of the law and legal disembedding

• Wendehorst, Christiane C ^[1]
  1. [1] University of Vienna

     University of Vienna

     Innere Stadt, Austria

     
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 16, Nº. 4, 2018, págs. 1258-1266
• Idioma: inglés
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• Resumen

  • In this article, I introduce a model of the interaction between individual protagonists such as judges, professors, or lawmakers, and the law, which has at its core the assumption that such interaction may normally be analyzed as taking one of four perspectives toward legal standards: the internal perspective, the external perspective, the sovereign perspective and the subordinate perspective. Reasoning from the internal perspective relies on the state or a similar polity setting to a considerable extent. By contrast, patterns of legal reasoning from some other perspectives do not intrinsically relate to the state or to any similar polity setting and work just as well in a transnational, global, or other setting. Legal disembedding may lead to a situation in which patterns of legal reasoning from the internal perspective need to be replaced. Protagonists engaging with the law, such as judges, lawyers, professors, or legislators, can substitute elements of the internal perspective by functionally equivalent elements of other perspectives, and they can, merely by switching rapidly between the different perspectives in streams of legal interaction, generate, identify, and deal with legal standards more or less independently of a polity framework.