Philosophy of Law

When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues like tax policy, welfare provision, criminal procedure, discrimination law, hate speech, pornography, political dissent, and the limits of religious toleration? The most familiar answer is that these decisions should be made democratically, by majority voting among the people or their representatives. Often, however, this answer is qualified by adding providing that the majority decision does not violate individual rights. This book argues that the familiar answer is correct, but that the qualification about individual rights is incoherent. If rights are the very things we disagree about, then we are quarrelling precisely about what that qualification should amount to. At best, what it means is that disagreements about rights should be resolved by some other procedure, for example, by majority voting, not among the people or their representatives, but among judges in a court. This proposal although initially attractive seems much less agreeable when we consider that the judges too disagree about rights, and they disagree about them along exactly the same lines as the citizens. The book argues that a belief in rights is not the same as a commitment to a Bill of Rights. It shows the flaws and difficulties in many common defences of the democratic character of judicial review. And it argues for an alternative approach to the problem of disagreement: when disagreements about rights arise, the respectful way to resolve them is by decision-making among the right-holders on a basis that reflects an equal respect for them as the holders of views about rights. This respect for ordinary right-holders, it argues, has been sadly lacking in the theories of justice, rights, and constitutionalism put forward in recent years by philosophers such as John Rawls and Donald Dworkin. But the book is not only about judicial review. It looks at a theory of legislation, a theory which highlights the size, the scale and the diversity of modern legislative assemblies. The book presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle, for it is a form of law making that does not attempt to conceal the fact that our decisions are made and claim their authority in the midst of, not in spite of, our political and moral disagreements.

This book explores the relationship between law and geography, especially with respect to taken-for-granted distinctions between the social and the material, the human and non-human, and what constitutes persons and things. As a genuinely reflective ‘Law and Geography’ project, this book offers interdisciplinary inquiry, particularly in response to globalisation — of law, commerce, environmental change, and society — which renders relations between the local and the global more significant. Because of the sheer expansiveness and complexity of both law and geography the book uses conceptual frames to structure this discussion — boundaries, land, property, nature, identity (persons, peoples, and places), culture, time, and knowledge. These frames cut across the various subdivisions of law and geography described above and provides a route into the various practical and theoretical deliberations on the interrelationship and interstices of law and geography which follow. The chapters are diverse in style, research methodology, and subject matter.

This book contains a collection of chapters by legal historians, which explore the ways in which history has been used by lawyers past and present to answer legal questions. In common with earlier volumes in the Current Legal Issues series, it seeks both a theoretical and methodological focus. This volume covers a broad range of topics, from a discussion of the nature of norms in the middle ages to the role of war crimes trials in the 20th century. It includes wide-ranging historiographical discussions which examine the nature and aims of the legal historian, as well as contributions which explore the methodology and aims of writers such as Coke, Maine, Weber, Montesquieu, and Kames, who sought to use historical models to explain law. A number of contributions examine developments in legal doctrine, particularly in the 19th century, including developments in the law of contract, administrative law, and perjury. These raise important questions about the nature of the legal categorisations which developed in that era. The book also includes a collection of contributions on the use of history in twentieth century trials, including the Nuremberg trials, the trial of the Gang of Four, and trials arising from the events in the former Yugoslavia and Rwanda.

This book provides a statement of a general theory of law based on the perspective that ‘law’ exists in all human communities before it is ever posited or in any other sense formally expressed. According to the book, ‘law’ is not only what is variously called ‘positive law’, ‘state law’ or, somewhat misleadingly, ‘human law’. On the contrary, the idea that a living law is an omnipresent feature of human community is a central theme of this book. By ‘living law’ the book means primarily those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community. The book begins by exploring the origins of civil society and the function of law. The book adopts the Roman law definition of justice as the willingness to give each what is due, and it examines the mutual rights or entitlements that must be for the most part honoured for any society to survive. In addition to distinguishing natural justice from conventional justice, and setting out in detail the distinction between distributive justice, rectificatory justice, and reciprocal justice, this study contains chapters on justice and the trading order; the nature of adjudication and interpretation; the relationship between morality, law, and legislation; natural law; rights; the force of law; and the authority and legitimacy of law.

Current Legal Issues, like its sister volume Current Legal Problems, is based upon an annual colloquium held at University College London. Each year leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloquium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. This book, the fifteenth volume in the Current Legal Issues series, offers an insight into the scholarship examining the relationship between language and the law. The issues examined in this book range from problems of interpretation and beyond this to the difficulties of legal translation, and further to non-verbal expression in a chapter tracing the use of sign language at the Old Bailey; it examines the role of language and the law in a variety of literary works, including Hamlet; and considers the interrelation between language and the law in a variety of contexts, including criminal law, contract law, family law, human rights law, and EU law.

This book, the third volume in the Current Legal Issues series, provides a treatment of an area that will stimulate and enlighten anyone interested in law and medicine. This book considers the many areas where medicine intersects with the law. Advances in medical research, reproductive science, and genetic research give rise to ethical and legal issues that are well known. These are reflected in chapters on cloning, organ donation, choosing genetic characteristics, and the use of Viagra. At the same time changes in health care funding call into question the rights of patients, whilst a rise in medical negligence litigation calls into question the doctor’s duty of care. What rights will patients have in a privately funded health service and what room is there for the patient’s right to choose or refuse treatment in such a system? The changing structure of health care is in the government’s hands comes whilst the supply of technology and drugs flows unregulated by market forces. In the future clashes between what can be done and what ought to be done will be increasingly referred to the courts. All of these important and changing facets of law and medicine are reflected in this book.

Current Legal Issues is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloqium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. Law and Philosophy, the tenth volume in the Current Legal Issues series, contains a broad range of essays by scholars interested in the interactions between law and philosophy. The collection displays ways in which philosophy can be applied to legal questions as well as the interactions between them. The two central themes are the lively and contentious contemporary debate about the nature of the law and the always relevant normative debate about what the state should do and the interactions between State, the citizen, and the law.

This book contains a collection of chapters which explore the ways in which law interacts with and is represented in popular culture. In common with earlier volumes in the Current Legal Issues series, it seeks both a theoretical and methodological focus. This book covers a broad range of issues. It is divided into nine parts which cover introductory themes; law as represented in the cinema and television; law as represented in novels; law and music; popular representations of crime and punishment; law, sexuality and popular culture; human rights and popular culture; the cultural phenomena of the mall and the franchise; and lawyering in popular culture.

Current Legal Issues, like its sister volume Current Legal Problems, is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloquium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. Law and Psychology, the latest volume in the Current Legal Issues series, contains a broad range of essays by scholars interested in the interactions between law and psychology. The volume includes studies of jury trials in terrorism cases, psychological evidence in family law cases, child witness testimony, and the role of psychology in punishment theory.

This fourth volume in the Current Legal Issues series is a comprehensive treatment of an area that will stimulate and enlighten anyone interested in law and religion. Both common and civil law jurisdictions and a wide variety of cultural contexts are represented. In addition the volume contains contributions written from a wide variety of faith perspectives (Christian, Jewish, Islamic, Ba'hai) as well as from a secular perspective. Chapters discuss a series of difficult and important issues from the interaction in contemporary societies of law and religious practice to the coherence of the notion of the soul and of the scope and limits of our concept of religion in a post modern world. A major theme of the volume is the common hermeneutical questions faced by the Islamic, Christian, and Jewish traditions. In addition, the implications for religious practice of the contemporary ascendancy of human rights are thoroughly and critically considered. A number of the chapters argue forcefully for controversial conclusions such as the legitimacy of the claim by some of the Christian Churches in New Zealand to exemption from legislation prohibiting discrimination on the grounds of sexual orientation. The European Convention on Human Rights and the jurisprudence of the Court come under particular critical scrutiny for example in relation to their protection of freedom of religion in the work place. Consideration is given to the extent to which State law can, should and does provide a regulatory framework for the life of religious institutions without compromising their collective autonomy for example in relation to matters of doctrine.