The Nature of Law and Legal Systems

Since at least the 1980s, police departments in the United States have embraced a set of practices that aim, not to enable the prosecution of past criminal activity, but to discourage people from breaking the law in the first place. It is not clear that these practices effectively lower the crime rate. However, whatever its effect on the crime rate, I argue that preventive policing is essentially distinct from legal governance, and that excessive reliance on preventive policing undermines legal governance. (...) To show this, I emphasize law’s unique aptitude to define legal subjects’ ‘manifest’ status relations – that is, the rights and obligations that live within their local practices. I then argue, first, that preventive policing does not aim to define these relationships; and second, that excessive preventive policing threatens the relationship that law must bear with its subjects if law is to define their manifest relations authoritatively. (shrink)

In this paper, I defend the possibility that law is a functional kind by replying to objections from Leslie Green and Brian Tamanaha. I also show how Kenneth Ehrenberg’s approach to law’s functions in his latest book concedes too much to these objections. A functional kinds approach to law is possible and, for someone interested in showing the importance of law’s functions, preferable. I first explore Tamanaha’s objection and show that the possibility of functional equivalents does not pose a problem (...) for a functional kinds account of law. I then respond to Green by showing that law is more distinctively identified by its function than by the means by which it achieves this function. I quickly explore a lesser objection dealing with how law can pursue a variety of ends while having the same function the whole while. I then turn to an issue Ehrenberg raises regarding thinking of the law as having a plurality of functions like a Swiss Army knife. Finally, I show that Ehrenberg’s approach to the relationship between law and its functions is unnecessarily weak, as it avoids holding that law's nature or essence is its proper function for similar reasons to Green and Tamanaha. (shrink)

This contribution develops two objections to Hans Lindahl’s legal philosophy, as exhibited in his Authority and the Globalization of Inclusion and Exclusion. First, his conception of constituent power overstates the necessity of violence in initiating collective action. Second, his rejection of the distinction between participatory and representative democracy on the grounds that participation is representation is misleading, and compromises our ability to differentiate qualitatively among various forms of (purportedly) democratic involvement. Both problems stem from the same root. They result from (...) conflating two distinct senses of ‘representation’: acting-for-someone (or representative agency) and portraying-something-as-something (or representation-as). (shrink)

The famous mid-20th century debate between Patrick Devlin and Herbert Hart about the relationship between law and morality addressed the limits of the criminal law in the context of a proposal by the Wolfenden Committee to decriminalize male homosexual activity in private. The original exchanges and subsequent contributions to the debate have been significantly constrained by the terms in which the debate was framed: a focus on criminal law in general and sexual offences in particular; a preoccupation with the so-called (...) “harm principle,” a sharp delineation of the realms of law and morality, and a static conception of the relationship between them. This article explores the limitations imposed by these various starting-points and argues for a holistic and symbiotic understanding of the relationship between law and morality. (shrink)

Der Streit zwischen Naturrecht und Rechtspositivismus im 20. Jahrhundert fördert unterschiedliche Konzeptionen des positiven Rechts und seiner Funktion zutage. Der Aufsatz geht von H.L.A. Harts Kritik am traditionellen Naturrecht aus und zeigt, dass diese an dem vorbeigeht, was dort zum Verhältnis von Recht und Moral behauptet wird. Mit Rückgriff auf Aristoteles wird dafür argumentiert, das Recht als eine institutionalisierte Praxis zu verstehen, die wesentlich auch eine erzieherische Funktion hat. Vor diesem Hintergrund wird klar, inwiefern aus naturrechtlicher Sicht gesetzliches Unrecht, zwar (...) nicht die Gültigkeit, wohl aber die Verbindlichkeit von Gesetzen unterminieren kann. Die naturrechtliche Konzeption des Rechts erweist sich zudem im Vergleich zu der Harts auch als phänomenal akkurater. (shrink)

One of the best-known members of the United Nations Commission which drafted the 1948 "Universal Declaration of Human Rights," Jacques Maritain, famously held that the "natural rights" or "human rights" possessed by every human being are grounded and justified by reference to the natural law.' In many quarters today, the notion of the natural law, and arguments for a set of natural rights grounded in the natural law, have come under fierce attack. One common line of attack is illustrated by (...) the arguments of some utilitarians, for whom "natural law thinking" is mistaken insofar as it implies that there is an absolute moral prohibition against violating any human being's "natural rights." Even if there is such a thing as "natural rights," these utilitarians argue, such rights - including even the natural "right to life" - are necessarily relational, and thus have meaning only within the context of a larger social whole. As a result, the argument goes, the supposed "natural rights" possessed by individual human beings are never inviolable or unconditional, but instead always negotiable and subject to being "traded away" for the sake of greater social utility. Consider just one alleged counter-example to the notion that there are inviolable or unconditional "natural rights": it is well-known that approximately 36,000 people in the United States die every year as a result of influenza infections or influenza-related complications.' There is little doubt that hundreds, and probably even thousands, of human lives would be saved every year if local governments were to pass laws requiring flu vaccinations for all members of at-risk populations (e.g., the very young and the very elderly). It would seem that there would be broad support for mandated flu vaccinations- no matter what the expense - if human lives would be saved and if the natural "right to life" is inviolable or unconditional.' And yet no such life-saving laws exist, apparently because citizens and legislators believe that the social costs and inconveniences would be too great. According to the utilitarian position, this demonstrates - contrary to what Ronald Dworkin and others say about rights' - that rights do not trump utility, but in fact are quite regularly and reasonably trumped by utility. In light of such contemporary understandings and policies, can natural law thinking about natural rights be made credible? In what follows, I shall argue that utilitarian thinkers are correct to hold that rights are intrinsically relational; but they are wrong to conclude that the relational character of rights entails that "natural rights" are not inviolable or not unconditional. (shrink)

In this paper, the author suggest that the historical and institutional conditions of existence of the concepts which animate legal argumentation – like the historical and institutional conditions of existence of certain forms of law – are of interest not only in their own right, but also because they raise methodological issues for jurisprudence. These include questions about the relationship between concepts and the social phenomena which they purport to categorise; about the relationship between philosophical and other forms of legal (...) theory; and about how a jurisprudence largely dominated by philosophical methods may be brought into productive dialogue with other forms of theoretical analysis. Only by broadening both its horizons and its methods, the author argues, will jurisprudence be capable of illuminating not only doctrinal analysis within particular jurisdictions at particular times, but also comparative and historical scholarship. (shrink)

In response to a climate in which respect for international law and the law of the European Union is rapidly losing ground, Paul Gragl advocates for the revival of legal monism as a solution to potentially irresolvable normative conflicts between different bodies of law. In this first comprehensive monograph on the theory as envisaged by the Pure Theory of Law of the Vienna School of Jurisprudence, the author defends legal monism against the competing theories of dualism and pluralism. -/- Drawing (...) on philosophical, epistemological, legal, moral, and political arguments, this book argues that only monism under the primacy of international law takes the law and the concept of legal validity seriously. On a practical level, it offers policy-makers and decision-makers methods of dealing with current problems and a means to restore respect for international law and peaceful international relations. While having the potential to revive and elicit further interest and research in monism and the Pure Theory of Law, the comprehensiveness and scope of the book also make it a choice text for inter-disciplinary scholars. (shrink)

ABSTRACTIn this paper I reassess the place of Plato’s Laws in the history of legal thought. The Laws has been traditionally considered to present a natural law theory of law. I argue instead that it presents a positivist account of the nature of law. Through analysis of some key passages of the Laws I argue that in that dialogue law is identified with conclusions of enkratic civic reason that may systematically conflict with precepts of substantive moral reason. I also argue (...) that in the Laws the rule of law is a precondition of a legal system but lacks inherent moral significance. For the rule of law to obtain there needs to be some compromise between the political interests of rulers and subjects which is grounded on political pragmatism and not on moral considerations. (shrink)

Si esaminano gli argomenti di Trasimaco (anche alla luce della posizione di Callicle) e, segnatamente, il rapporto tra la legge e il potere costituito: il raffronto con il pensiero di Carl Schmitt prende avvio dal nodo centrale del significato attribuito al νόμος. Si analizzano le argomentazione nei dialoghi platonici per ricostruire la concezione del νόμος e gli elementi che possono fornire risposte indirette alla questione posta da Trasimaco, al di là della ricerca della definizione del concetto di giustizia, con particolare (...) attenzione alla legge ed alle forme di governo. Si esamina la relazione tra le tesi sulla sovranità elaborate da Schmitt e le teorie sul potere rintracciabili nelle posizioni di Trasimaco e di Callicle in rapporto ai frammenti di Pindaro ed Eraclito. Considerata la centralità della relazione amico-nemico nel pensiero di Schmitt, posta a confronto con le posizioni platoniche, si esamina la distinzione tra la concezione della legge come atto cognitivo di scoperta della verità e la sua fondazione sul principio della decisione da parte di chi detenga il potere sovrano, punto di arrivo dello sviluppo delle tesi hobbesiane da parte di Schmitt. (shrink)

Lettura prospettica di un caposaldo del pensiero hobbesiano: il sorgere del rapporto tra l'uomo ed il potere, tra la naturale condizione umana e la nozione di civiltà, attraverso due frammenti particolarmente rappresentativi della concezione hobbesiana del passaggio dallo stato di natura alla civiltà: il tredicesimo capitolo del Leviathan, sulla condizione naturale dell'uomo, ed il quinto capitolo, sulle cause ed origini della civitas, del De cive, giacché la mera esistenza dell'uomo ed il suo riconoscimento di una legge naturale, a giudizio di (...) Hobbes, non implica affatto necessariamente una qualsiasi forma consolidata di organizzazione sociale. Sebbene il De cive (pubblicato in latino nel 1642 e, in inglese, nel 1651) preceda cronologicamente il Leviathan (pubblicato, viceversa, dapprima in inglese, nel 1651, poi in latino, nel 1668), nell'ordine logico dell'esposizione qui presentata, il brano del Leviathan può essere considerato propedeutico al quinto capitolo del De cive, delineandone i presupposti, segnatamente la condizione di continuo pericolo per tutti causata dallo stato generale di reciproca guerra, che costituisce forse l'aspetto più noto (e frainteso) del pensiero hobbesiano. Per una migliore comprensione dei testi e delle differenti (spesso opposte) interpretazioni cui hanno dato vita, si è ritenuto di proporre, per quanto concerne i brani di Hobbes, tanto la loro traduzione in lingua italiana quanto le stesure originali in latino e inglese, presentate con i testi a fronte; tale scelta fornisce l'opportunità di osservare l'accurata scelta di alcuni dei vocaboli chiave della filosofia di Hobbes, la cui trasposizione da una lingua all'altra è stata spesso causa di fraintendimenti o volgarizzazioni in tutto o in parte ingiustificate. Allo scopo di offrire una più completa prospettiva del pensiero hobbesiano delineato nei brani selezionati, si è ritenuto di affiancare ad essi dei frammenti di interpreti novecenteschi (con delle sintetiche schede bio-bibliografiche) di alcuni concetti formulati da Hobbes e, segnatamente, di F. Tönnies, M. Horkheimer, L. Strauss, C. Schmitt, T. Parsons, N. Bobbio, H. Warrender. (shrink)

The article defends the claim that if some laws are (or would be) widely accepted, this provides pro tanto moral reasons to support these laws and not to support otherwise better laws that are not widely accepted. In that sense the value of having widely accepted laws provides moral reasons to make compromises in politics, and it justifies a modest and qualified status quo bias. Widely accepted laws are valuable because they reduce enforcement costs, have symbolic value, help to maintain (...) peace, and realize the value of non-subjugation. (shrink)

Che cosa distingue, concettualmente, l’esattore delle tasse che esiga da un uomo, a pena di sanzioni, una determinata somma di denaro, dal bandito che gli intimi, sotto la minaccia di un’arma, di consegnargli la medesima somma? È sul soddisfacimento del requisito della giustizia che si fonda, come sostenne Agostino, l’eterogeneità tra uno Stato e un’accolita di furfanti? «Se non è rispettata la giustizia, che cosa sono gli Stati, se non delle grandi bande di ladri? Perché le bande di briganti che (...) cosa sono, se non dei piccoli Stati?». Il volume ripercorre le risposte più autorevoli fornite nel XX secolo, entro un orizzonte postmetafisico, alla domanda agostiniana: prima dell’avvento del regime nazista, la tesi che un’associazione a delinquere sia indistinguibile da uno Stato è stata sostenuta da Benedetto Croce, Santi Romano e Hans Kelsen; dopo l’esperienza del nazismo e delle sue atrocità, perpetrate in nome dello Stato e della legge, le questioni relative alla natura del diritto e alla relazione tra morale e diritto hanno assunto – come ha osservato Robert Alexy – «l’urgenza di un problema scottante», e la domanda filosofica sulla validità della legge ingiusta è apparsa ineludibile non solo ai maggiori filosofi del diritto (Herbert L.H. Hart, Alf Ross, Ronald Dworkin e lo stesso Alexy), ma alle stesse corti tedesche. (shrink)

The article devoted to legal and political institutions comprehension from analytical philosophical tradition standpoint. The author of the article made an attempt to define political institutions through the concepts introduced in the considered legal tradition. This vision of problem solution is justified by the fact that analytical philosophy is guided by the logical analysis of the essence of the subject, indicating interconnection and interdependence of legal and political institutions that cannot be perceived today in isolation from each other. Through an (...) appeal to the classics of tradition, it is determined that in analytical philosophy, the problematic field of the essence of legal and political reality is concluded in application of legal acts. It is revealed that by means of an analytical method, it is possible to single out the real content of right and policy. As a result, the author comes to the conclusion that it is necessary to analyze language that has contextual relevance to reality because cognition through an instrumental relationship to linguistic reality makes it possible to gain its expanded understanding and overcome contradictions. (shrink)

Why Law Matters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter as such.

Even though the acknowledgment of the possibility of disagreement about the grounds of legal facts tends to acquire the shell of a mainstream view, the available regimentations of grounding disagreements in law limit their scope to two mutually exclusive jurisprudential variants. Ronald Dworkin’s original conception of theoretical disagreement as being about the responsibilities of government vis-à-vis its citizens is distinctly evaluative thereby excluding legal positivists from meaningful participation. An alternative descriptive variant has been recently defended by Scott Shapiro which replicates, (...) nonetheless, the same exclusive function. The paper addresses this problem by locating its roots in the positivist elaboration of the idea that legal statements are inherently perspectival. After critically rejecting the perspectival model it proposes an alternative regimentation of legal statements as carrying metaphysical information about the constitution of legal content and explains how this non-perspectival model makes grounding disagreements in law maximally inclusive and meaningful. (shrink)

This essay presents an interpretation of the juridical thought of Cicero, Hugo Grotius and Adam Smith. Focussing upon questions of property, capital accumulation and violence, the essay traces a tension within their writings between a social ethic of human fellowship and compassion, and, a theory of the utility of ‘unsocial’ commercial self-interest. This tension forms a key problem for the tradition of liberal international law. For Grotius and Smith one response to this tension is to attempt to reign in capitalist (...) markets by asserting a range of moral duties to individuals and to the nation-state. The importance of stressing such an interpretation is to reject the flattening-out of the liberal political and juridical tradition by contemporary neoliberal thought, and to reclaim a number of ways of thinking about the global economy and international law in which moral action and political intervention are understood as playing a necessary and essential role. (shrink)

This paper discusses the main criticism launched against legal monism and the Pure Theory of Law, as envisaged by Hans Kelsen and the other proponents of the Vienna School of Jurisprudence, namely the criticism voiced by two of the most eminent legal theorists, HLA Hart and Joseph Raz. According to them, legal monism fails to offer a satisfactory theory of the identity of legal systems and it therefore simply cannot be considered a viable theory of legal systems, because it leads (...) to obviously absurd consequences. These arguments which take the form of an attack on the most basic tenets of the Pure Theory of Law and thus legal monism, will be duly addressed and consequently rebutted in this paper, particularly in order to be able to maintain legal monism in its juridico-epistemological manifestation as a working and viable theory of the law. (shrink)

This article considers HLA Hart's influence in the making of John Finnis's book Natural Law and Natural Rights. In the style of an intellectual biography it traces the history of the interaction between the two Oxford legal philosophers using their correspondence as a starting point. It also delves into Finnis's years in Africa—a period of his life both crucial for the writing of the book and utterly unknown. It argues that Hart's role was significant not only insofar as he was (...) behind the idea of the book but also because of the restrained way in which he freely chose to conduct his role as editor despite the extent of the reservations he had regarding Finnis's work, fully revealed here. Given the importance of Natural Law and Natural Rights for what has been called the ‘new natural law theory’ the article concludes by awarding Hart his due credit in the making of one of that theory's main sources of inspiration. (shrink)

This article considers HLA Hart's influence in the making of John Finnis's book Natural Law and Natural Rights. In the style of an intellectual biography it traces the history of the interaction between the two Oxford legal philosophers using their correspondence as a starting point. It also delves into Finnis's years in Africa—a period of his life both crucial for the writing of the book and utterly unknown. It argues that Hart's role was significant not only insofar as he was (...) behind the idea of the book but also because of the restrained way in which he freely chose to conduct his role as editor despite the extent of the reservations he had regarding Finnis's work, fully revealed here. Given the importance of Natural Law and Natural Rights for what has been called the ‘new natural law theory’ the article concludes by awarding Hart his due credit in the making of one of that theory's main sources of inspiration. (shrink)

A legal system consists of a complex body of practices—primary and secondary—, particularly practices of reasoning and justification. The intellectual, theorized aspect of legal order is embodied in legal doctrine: the corpus of norm-sentences, norms and rules, principles, doctrines and concepts used as basis for legal reasoning and justification. It includes elaborate conceptual structures of principles and doctrines, explicit and sophisticated forms of reflection and criticism. It is only when we have understood the nature of legal doctrine that we can (...) comprehend the workings of courts, lawyers and even legislatures. Concerning the need for a new conception of legal theory one question arises, above all, especially when external and internal observation as well as the critical reflection of the premises and presuppositions of all dealings with the law permit a degree of distance, the question, namely, whether it is not an increasing application of scientific methods that is needed, in the sense that the development of a legal theory from the beginning involves the integration of a norm-descriptive point of view and intellectual stand-point with the norm-prescriptive theory of law, by way of complementing each other, as it were. This, at least, appears to be the only way of clarifying also the relationship between le­gal theory and philosophy and the theory and sociology of law. The inevitable consequences of the development of a theory of norms and action also have to be drawn from this. (shrink)

One of the first volumes in the new series of prestigious Oxford Handbooks, The Oxford Handbook of Jurisprudence and Philosophy of Law brings together specially commissioned essays by twenty-six of the foremost legal theorists currently writing, to provide a state of the art overview of jurisprudential scholarship.

Originally written in 1990, this reviews largely late 20th century debates on the study of law as Logic, Discourse, or Experience; the Unity of the Legal System and the Problem of Reference; Semiotic Presuppositions of Traditional Jurisprudence (Austin, Hart, Kelsen, Dworkin, Legal Realisms); then turns to legal philosophies explicitly Employing Forms of Semiotics (Kalinowski, the Italian Analytical School, Rhetorical and Pragmatic Approaches, Sociological and Socio-Linguistic Approaches, Peircian Legal Semiotics, Greimasian Legal Semiotics and Aesthetic/Symbolic Approaches). A major section then offers (from (...) a largely Greimasian point of view) some hypotheses for legal semiotics on the Problem of Reference, Semantic and Pragmatic Levels, Semiotic Groups and “The Legal Culture”, Normativity and Justification, and finally considers the implications for particular legal phenomena: the “Legal System”, Legal Institutions, Legal Codes, Legal Rules, Rights, Courtroom Behaviour: Witness and Counsel, The Judge: Justification of Decisions on Law, and the Criminal Justice Process. A conclusion addresses the status of legal semiotics. (shrink)

The dominating view of legal effectiveness is based on the idea of a gap between what the law states, or commands, and how the population acts. When behaviour is not in accordance with law, the legal system or a norm is not considered effective. This idea is challenged in this article. Previous research on legal transplantation is used as reference for an analysis of legal application and legal effectiveness from a sociological and systems theoretical perspective. It is well known that (...) imported laws functions less well than internally developed laws, but explanations differ. According to the currently known effectiveness concept the poorly functioning imported law is a paradox. In this article a new effectiveness concept is developed. It is shown how the poor functioning of legal transplants can be explained using our new approach to legal application and legal effectiveness. (shrink)

This article gives a concise overview on developments in German legal philosophy since 1990. After briefly sketching the previous streams, dating back to 1945, it focuses on current tendencies and topics. Three main debates are reported in detail, namely the debates on the structure of legal argumentation, on the structure of the legal system, and on Radbruch's Formula. This includes, inter alia, Robert Alexy's new theory of balancing as well as the debate on the role of logic in legal reasoning. (...) Overall, the article introduces the main protagonists and schools as well as their respective advantages, drawbacks, and challenges. (shrink)

Bódog Somló is the most reputable representative of Hungarian legal philosophy at the last turn of the century, whose ouevre greatly contributed to the establishment of the neo-Kantian legal philosophy, the dominant trend preaviling in Central Europe at the time, a development that eventually resulted in modernising the legal scholarship and theoretical thought in law in Hungary. Hungarian jurisprudence can be proud of the fact that Bódog Somló, besides Rudolf Stammler, Gustav Radbruch, Hans Kelsen and Alfred Verdross is regarded as (...) a great representative of European neo-Kantian philosophy of law. (shrink)

In this paper I want to reconnect the theoretical debate on the concept of law and the relationship between law and morality with legal issues constituted by highly unjust norms. Proceeding from a critique of more or less emphatic positivist attempts at ethical purification of legal thought, I shall roughly sketch a Davidsonian-Dworkinian framework which seems to provide us with a more appropriate background for dealing with immoral norms than positivist and natural law accounts. This claim will be substantiated by (...) way of an analysis of three different cases: immoral norms of a past system of civil law; immoral norms of a past system of criminal law; immoral norms of the present legal system. (shrink)

This article examines the law of psychiatric illness in the light of Ronald Dworkin's and Stanley Fish's legal theory. The article proposes to examine the attitude of judges to judicial law making in England and Australia, the jurisprudential contributions to the debate and the need for and the justification of judge-made law in terms of rules, principles and policies. Although there is recent scientific research explaining that mental health causes actual trauma to brain cell structures, it seems unlikely that English (...) courts will adopt a similar stance to recognize this new development in psychiatry. Dworkin is of the opinion that legal decisions must be justified with a legal theory such as 'application of the methods of literary interpretation to legal texts.' Dworkin explained his work by referring to policies, principles, rights, interpretations, adjudication, pragmatism, conventionalism and integrity. His perception of law is seen from an interpretive vantage point, in which policies, principles and rights play a crucial role alongside positive law and most cases are settled on the basis of 'like cases should be decided alike.' On the other hand, Fish demonstrates how readers from a similar background or context will interpret a text similarly, and thus that the reader, more than the text, determines what the text says. Further he emphasises the reader as creator of texts, suggesting that it is not different interpretive communities that cause diverging interpretations of texts but simply different interpretations. (shrink)

This paper presents one argument against the fundamental principle of legal positivism: the separation of law and morals. This principle is based on the view that morality is intrinsically subjective, while law presents objective standards of social behaviour. The author argues that there is a valid source for identifying the morality which is not individualistic but shared by the whole community. This source is found in simple narratives of folktales. The lawyers need folktales to identify moral principles shared by the (...) community when it is warranted by the letter of law itself. Even when there is no apparent need to determine the content of public morality, folktales are still helpful in presenting principles and illustrations that are vital to grasp the spirit of law. The contemporary law moves towards increasing technicality, and therefore, it poses a challenge to the rule of law and democracy. In the technicalities of law, the spirit of law is obliterated. This is particularly seen in the countries such as Thailand and China. Those countries view law as a machine of social control and manipulation. Law becomes the means of oppression. The cultural roots of law are ignored. Folktales contain a message of wisdom so desperately needed among Asian lawyers addicted to legal formalism. (shrink)

Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned by Hart in which power-holders may be legally disabled. Legal invalidation of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal (...) pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort of control, less restrictive than completely invalidating them but more restrictive than just not validating them, that is, just ignoring them. Illustrative examples include the European Court of Justice's early use of invalidation to convert an international treaty into a supranational constitution, and the subtle effects of legal nonvalidation of same-sex marriage. (shrink)