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The end of the Cold War has brought a new form of world disorder. The systems and strategies imposed by the global balance of power of the Cold War have evaporated. The international system is seeking a new equilibrium between global integration and global disintegration. Natural forces of economic and cultural integration are opposed by equal and opposite forces of national and cultural particularism, and by the conflicts flowing from gross inequalities and injustices of social and economic order. New threats to international public order have been added to centuries-old forms of international conflict. Our national societies have always had systems of ideas and ideals to help us to co-operate as effectively as possible for our survival and prospering. The international system has never had a greater need for a philosophy of society and law to explain and to guide the co-existence and co-operation of all human beings, as inhabitants of a habitat which we all must share. This book is an attempt to provide such a universal philosophy of society and law. It is a philosophy of social idealism, in which all human beings and all human societies might find a means of taking power, through the power of ideas, over the overwhelming complexity and energy of the new world in which we find ourselves — a world full of danger and full of hope. This book contains a new analysis of the state of that world and new proposals for the practical application of a philosophy of social idealism.

This book is a collection of essays examining the work of Ronald Dworkin in the philosophy of law and constitutionalism. A group of leading legal theorists develop, defend, and critique the major areas of Dworkin's work, including his criticism of legal positivism, his theory of law as integrity, and his work on constitutional theory. The volume concludes with a lengthy response to the essays by Dworkin himself, which develops and clarifies many of his positions on the central questions of legal and constitutional theory. The volume represents an ideal companion for students and scholars embarking on a study of Dworkin's work.

This book examines justifications for interfering with personal preferences. The paternalist would second-guess a person's choices with the goal of making him better off; the perfectionist would do so to enforce morals by eliminating immoral choices. The two categories overlap to a large extent, but remain different. The paternalist is not a perfectionist when he would impugn morally neutral choices which would nevertheless leave a person worse off. This book calls this “soft paternalism” and contrasts this to a “hard paternalism” that overlaps with perfectionism and enforces a moral vision. Whether soft or hard, paternalism would embrace state interference based on judgment errors, weakness of the will, information costs and endogenous preferences. In general this book keeps a sceptical view that such arguments make a strong case for state intervention with people's choices. There are different ways of influencing choices, and liberal perfectionists would use moderate means (carrots more than sticks) to do so. Rules that nudge people towards particular choices are less troubling when they permit people to opt out, but such rules might still be illiberal if they direct people to choices that they would never want to make if they thought about it. The perfectionist is not a paternalist when he enforces a moral code without seeking to make a person better off, but instead to protect people influenced by his bad behavior. The book calls this “social perfectionism” as contrasted with the “private perfectionism” that is concerned with the morals of the person making the choice. Rules that promote nationalism are a prominent example of social perfectionism.

This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyzes the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluated against the backdrop of the growing acceptance by international legal theorists of the blurring of the lines between law and non-law. At the same time, the book acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and that only a limited part of the exercise of public authority at the international level results in the creation of international legal rules. The theory of ascertainment that the book puts forward attempts to dispel some of the illusions of formalism that accompany the delimitation of customary international law. It also sheds light on the tendency of scholars, theorists, and advocates to deformalize the identification of international legal rules with a view to expanding international law. The book seeks to revitalize and refresh the formal identification of rules by engaging with some tenets of the postmodern critique of formalism. As a result, the book not only grapples with the practice of law-making at the international level, but it also offers broad theoretical insights on international law, dealing with the main schools of thought in legal theory (positivism, naturalism, legal realism, policy-oriented jurisprudence, and postmodernism).

This book examines systematically the underlying theory of evidence in Anglo-American legal systems and identifies the defining characteristics of adjudicative fact-finding. The book develops an innovative theory which sets aside the traditional vision of evidence law as facilitating the discovery of the truth. Combining probability theory, epistemology, economic analysis, and moral philosophy it argues instead that the fundamental purpose of evidence law is to apportion the risk of error in conditions of uncertainty. The book begins by identifying the domain of evidence law. It then describes the basic traits of adjudicative fact-finding and explores the epistemological foundations of the concept. This discussion identifies the problem of probabilistic deduction that accompanies generalizations to which fact-finders resort. The book advances the principle of maximal individualization that does not allow fact-finders to make a finding against a person when the evidence they use is not susceptible to individualized testing. This analysis identifies allocation of the risk of error as requiring regulation by evidence law. Advocating a principled allocation of the risk of error, the book denounces free proof for allowing individual judges to apportion this risk as they deem fit. The book then develops three fundamental principles for allocating the risk of error: the cost-efficiency principle which applies across the board; the equality principle which applies in civil litigation; and the equal best principle which applies in criminal trials. Regulating both the admissibility of evidence and its sufficiency, these principles explain and justify many existing evidentiary rules.

This book provides a theoretical and sociological exploration of the relationship between law and society. Law is generally understood to be a mirror of society — a reflection of its customs and morals — that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society. It then engages in a theoretical and empirical critique of this common understanding. The theoretical critique exposes the mythical quality of the two most often repeated theories about the emergence of law, the evolutionary theory and the social contract theory. It also discusses a fundamental shift, resulting from Enlightenment ideas about reason and morality, in the theoretical understanding of the relationship between morality and law. The empirical critique covers various subjects, primarily including the impact of legal transplantation and globalisation. The book then constructs an alternative universally applicable framework with which to understand the relationship between law and society. The core component to this framework is a non-essentialist approach to the concept of law, which provides a basis for understanding of the phenomenon of legal pluralism. Finally, the book articulates how this framework would operate in facilitating our ability to study, understand, and criticise the relationship between law and society in a variety of contexts around the world today. In addition to illuminating the relationship between law and society, a key aspect of the argument of this book is to construct an approach to law that integrates legal theory with sociological approaches to law.

Hans Kelsen is considered by many to be one of the foremost legal thinkers of the twentieth century. He made important contributions to many areas, but especially to legal theory and international law. Over a number of decades, he developed an important legal theory which found its first complete exposition in Reine Rechtslehre, 1934, and its fullest expression in the second edition of Reine Rechtslehre, 1960. During the last decade of his life he was working on what he called a general theory of norms. When he died in 1973, he left a lengthy manuscript, which was published in 1979 as Allgemeine Theorie der Normen. This book is the translation, General Theory of Norms. It is the last work of one of the most important legal theorists this century. In it, Kelsen develops his ‘pure theory of law’ into a ‘general theory of norms’. In so doing, he provides a new basis for some of the positions he espoused earlier on, but also revises some of his earlier positions. The most important new topic is that of the applicability of logic to norms: Kelsen develops an original and extreme position some people have called ‘normative irrationalism’. In the book, Kelsen also examines the views of over 200 philosophers and legal theorists on law, morality, and logic, ranging from Plato and Aristotle to contemporary thinkers.

Hans Kelsen is considered to be one of the founding fathers of modern legal philosophy. But despite Kelsen's prominence as a legal theorist, his political theory has been mostly overlooked. This book argues that Kelsen's Pure Theory of Law needs to be read in the context of Kelsen's political theory. It offers the first comprehensive interpretation of the Pure Theory that makes systematic use of Kelsen's conception of the rule of law, his theory of democracy, his defense of constitutional review, and his views on international law. Once it is read in the context of Kelsen's political works, Kelsen's conception of legality provides the basis for a notion of political legitimacy that is distinct from any comprehensive and contestable theory of justice. It shows how members of pluralist societies can reasonably acknowledge the binding nature of law, even where its content does not fully accord with their own substantive views of the requirements of justice, provided it is created in accordance with an ideal of fair arbitration amongst social groups. This result leads to a fundamental re-evaluation of the Pure Theory of Law. The theory is best understood as an attempt to find a middle ground between natural law and legal positivism. Later positivist legal theorists inspired by Kelsen's work failed to appreciate the political-theoretical context of the Pure Theory and turned to a narrow instrumentalism about the functions of law. The perspective on Kelsen offered in this book aims to reconnect positivist legal thought with normative political theory.

Published posthumously, the second edition of The Concept of Law contains one important addition, namely a substantial Postscript, in which Hart reflects upon some of the central concerns that have been expressed about the book since its publication in 1961. The Postscript is especially noteworthy because it contains Hart's only sustained response to the objections pressed by his foremost critic, Ronald Dworkin, who succeeded him to the Chair of Jurisprudence at Oxford. The Postscript focuses on a range of issues covering both Hart's substantive view and his methodological commitments. In particular, Hart endorses Inclusive Legal Positivism, asserting that this is a methodology of descriptive jurisprudence which he contrasts with Dworkin's normative jurisprudence or interpretivism, while denying that his theory of law has a semantic underpinning. The chapters in this collection address each of these issues. The book contains discussions of Hart's semantic commitments, his rejection of a normative jurisprudence as well as the extent to which he can embrace Inclusive Legal Positivism in a way that is consistent with his other stated positions. The book's contributors include advocates of alternative schools of Positivist jurisprudence, contributors to the methodological disputes in jurisprudence and experts on the relationship of philosophy of language to jurisprudence.

Researchers associated with the “Heuristics and Biases” (H&B) school and those who view heuristics as “Fast and Frugal” (F&F) problem-solving methods share much in common. They agree that people frequently and quite reasonably use heuristics, making factual judgments or reaching decisions about what actions best serve their ends without making use of all potentially relevant information or computational abilities. This book focuses, though, on the distinctions between the two schools. Echoing the conventional rational choice model, H&B researchers suggest that people make decisions by assessing the probability that certain outcomes will follow a particular action and by evaluating each of these possible outcomes. Unlike rational choice theorists, these researchers emphasize that people, facing a range of cognitive limitations, will not always make accurate judgments even if they have perfect information and explain, as well, why evaluations are sensitive to the ways in which preferences are elicited. F&F scholars claim instead that the key source of the use of heuristics is not our computational incapacity but our evolved capacity to make use of appropriate environmentally available cues. People’s judgments are typically ecologically, if not logically, rational in the sense that our judgments meet our actual goals, if not the demands of classical rational choice theory. Moreover, while rational choice theorists extol judgment and decision making processes in which decision makers weigh multiple cues and factors, and H&B theorists believe our incapacity to perform such multifactor balancing poses problems, F&F theorists believe, descriptively, that we typically use lexical decision making processes and, normatively, that doing so typically leads us to make better judgments. These disputes have bite. Policymakers will have very different ideas about what we must do to induce greater law compliance or insure that consumers can make decisions in their interests, and they will evaluate the propriety of cost-benefit analysis or the virtues of a rule-bound legal system differently depending on how they resolve these very basic questions about the flaws, virtues, and nature of heuristic reasoning.