Philosophy of Law

This book is an introduction to a general study of legal systems, that is, to the study of the systematic nature of law, and the examination of the presuppositions and implications underlying the fact that every law necessarily belongs to a legal system (the English, or German, or Roman, or Canon Law, or some other legal system). A comprehensive investigation may result in what could be called a theory of legal system. Such a theory is general in that it claims to be true of all legal systems. If it is successful it elucidates the concept of a legal system, and forms a part of general analytic jurisprudence. The approach to the subject adopted here is in part historical, and starts from a critical examination of previous theories. The constructive part of the work is analytical in character, and the authors examined in the historical part all belong to the analytic school of jurisprudence.

This book shows that civil disobedience is more defensible than private conscientious objection. Part I distinguishes conviction from conscience, shedding light on the former as something non-evasive and communicative, and on the latter as something much richer, namely, genuine moral responsiveness. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private ‘conscientious’ objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished.

This third book in the Criminalization series examines the constitutionalization of criminal law. It considers how the criminal law is constituted through the political processes of the state; how the agents of the criminal law can be answerable to it themselves; and finally, how the criminal law can be constituted as part of the international order. Addressing the ways in which and the grounds on which types of conduct can be justifiably criminalized, the first four chapters of this volume focus on the questions that arise from a consideration of the political constitution of the criminal law. The chapters then turn their attention to the role of the state, its institutions and officials, and their role not only as creators, enactors, interpreters, and enforcers of the criminal law, but also as subjects of it. How can the agents of the criminal law also be answerable to it? Finally, the discussion turns to how the criminal law can be constituted as part of an international order. Examining the relationships between domestic laws of different nation-states, and between domestic criminal law and international or transnational law, the chapters also look at the authority and jurisdiction of international criminal law itself, and its relationship to other dimensions of the international order.

This book provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory, and institutions bound together by rules. The institutions of the state make a distinctive and characteristic claim over the people of the state, who, in turn, have a distinctive and characteristic relationship with these institutions. This account reveals the importance of at least two forms of pluralism — legal and constitutional. It also casts light on some of the more difficult questions faced by writers on constitutions — such as the possibility of states undertaking actions and forming intentions, the moral significance of these actions for the people of the state, and the capacity of the state to carry responsibility for acts between generations.

As constitutional law is being globalized, the quest for a common grammar or ‘generic constitutional law’ becomes more pressing. That proportionality may be one element of such common grammar is both widely accepted and highly contested. In view of this alarming tension between the triumphant success of proportionality and the severity of criticism, the book engages in an in-depth analysis of this criticism and demonstrate that the objections against the proportionality test are not convincing. The book clarifies and further develops the current theories of proportionality and balancing. While the book is broadly based on Alexy’s principles theory, it suggests several modifications to this theory. Examples are taken from the case law of the European Court of Human Rights, the European Court of Justice and various national constitutional courts in order to exemplify the argument and demonstrate its relevance for deciding concrete cases. The book defends proportionality analysis as an instrument located this side of, rather than beyond, constitutionalism. But given the often underestimated capability of instruments like the proportionality test, the limitations of constitutionalism are farther away than it is sometimes considered.

After the fall of Communism in Central and Eastern Europe, the newly democratized countries of this region joined two main pan‐European political and legal structures: the Council of Europe and the European Union. This book shows how the eastward enlargement of these two structures fostered the ‘constitutionalization’ both of the Council of Europe and of the EU. As for the human‐rights focused Council of Europe, the book shows that its main judicial body, the European Court of Human Rights, became a quasi ‘constitutional court’ of Europe as a result of the widening of its agenda and the resulting need to make activist decisions about the compatibility of national laws with the European Convention. Essentially, this move has been prompted by the enlargement of the Council of Europe and the admission of a number of countries which brought unique and often more substantial problems onto the Court’s agenda. In terms of the EU, the book shows that the enlargement (both prospective and actual) has been an important agenda‐setter for the constitutionalization of the EU; in particular, for openly placing the issue of fundamental rights on the EU agenda as a legitimate (indeed, indispensable) matter of concern for the EU. But the ‘constitutional synergies’ are a two‐way street: the accession to both pan‐European structures has also affected the development of democratic constitutionalism in Central and Eastern European (CEE) states, raising difficult issues regarding the relationships between national sovereignty, democracy, and human rights that CEE policy‐makers have grappled with. These issues and responses by CEE member states have also had implications for the ‘old’ EU member states. It is these dynamics that will be explored through various case studies, providing a new perspective on the development of legal norms and institutions within European supranational bodies.

This book develops the implications of that venerable Aristotelian notion of justice for understanding contemporary private law. Over the last decades corrective justice has become a central but controversial idea among legal scholars and theorists. This book presents corrective justice as the normative idea latent in the institutions and concepts of a fair and coherent regime of liability. It begins by setting out the conceptual components of corrective justice: the correlativity of the parties normative positions as the structuring idea of their relationship, and a robust notion of rights and their correlative duties (conceived in Kantian terms) as the content appropriate to legal relationships structured in that way. It then describes the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. The book integrates the concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Combining legal and philosophical analysis, it presents private law in non-instrumental terms, as a distinctive mode of moral discourse that focuses on the normativity intrinsic to the parties relationship.

This book examines the enduring problem of the relationship between man's law and a “higher” law from the perspective of core humanities texts and through discussion of hotly debated contemporary legal conundrums. Today, such issues as intelligent design in school curricula, same-sex marriage, and faith-based government grants are all examples of the interaction between man's law and some other set of moral principles. As these debates are considered in this book, the book uses texts such as Antigone and Plato's Republic and pairs them with the most important jurisprudence texts of the 20th century to explore different approaches to the contemporary conflict or court ruling under consideration. This book demonstrates that the humanities can both illuminate our understanding of contemporary problems and that “classic” texts can be read alongside jurisprudential texts, thus enriching our understanding of and appreciation for law.

It is generally assumed that we are justified in punishing criminals because they have committed a morally wrongful act. Determining when criminal liability should be imposed calls for a moral assessment of the conduct in question, with criminal liability tracking as closely as possible the contours of morality. Versions of this view are frequently argued for in philosophical accounts of crime and punishment, and seem to be presumed by lawyers and policy makers working in the criminal justice system. Challenging such assumptions, this book considers the dominant justifications of punishment and subjects them to a piercing moral critique. It argues that none overcome the objection that people who are convicted of a serious crime and sent to prison have their basic human rights violated. The institution of criminal punishment is shown to be a regrettable necessity not deserving of the moral enthusiasm it enjoys among many politicians and the popular press. From a moral point of view, punishment is entitled at best to grudging toleration. In the course of developing the argument, the book introduces the principal issues of criminal law theory with the aim of presenting a morally enlightened perspective on crimes and why we punish them. Enforcement of the law by police, prosecutors, and courts is a matter of concern for political morality, and the principal practices of the criminal justice system are subjected to moral scrutiny. The book offers a provocative introduction to thinking about the philosophy of crime and punishment.

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the book goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed attention to cases. The book is unusual in that it grapples with English, Scots, and US law, showing great breadth of research as well as philosophical sophistication.