Philosophy of Law : oso

The Three Branches

Christoph Moellers — 2013-05-23

Author:: Christoph Moellers
ISBN:: 9780199602117
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199602117.001.0001
Published in print:: 2013
Published Online:: 2013-05-23

The idea of the separation of powers is still popular in much political and constitutional discourse, though its meaning for the modern state remains unclear and contested. This book develops systematic account of the principle. It then applies this new concept to legal problems of different national constitutional orders, the law of the European Union, and international institutional law. It connects an argument from normative political theory with phenomena taken from comparative constitutional law. The book argues that the conflict between individual liberty and democratic self-determination that is characteristic of modern constitutionalism is proceduralized through the establishment of different governmental branches. A close analysis of the relation between individual and collective autonomy on the one hand, and the ways lawmaking through public institutions can be established on the other hand, helps us identify criteria for determining how legislative, administrative, and judicial lawmaking can be distinguished and should be organized. These criteria define a common ground in the confusing variety of western constitutional traditions and their diverse use of the notion of separated powers. They also enable us to establish a normative framework that throws a fresh perspective on problems of constitutional law in different constitutional systems: constitutional judicial review of legislation, limits of legislative delegation, parliamentary control of the executive, and standing. Linking arguments from comparative constitutional law and international law, the book then uses this framework to offer a new perspective on the debate on constitutionalism beyond the state. The concept permits certain institutional insights of the constitutional experiences within states to be applied at the international level without falling into any form of methodological nationalism.

Reason, Morality, and Law

John Keown and Robert P. George — 2013-05-23

Author:: JohnKeownRose Kennedy Professor, Kennedy Institute Of Ethics, Georgetown UniversityRobert P.GeorgeMcCormick Professor of Jurisprudence, Princeton University
ISBN:: 9780199675500
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199675500.001.0001
Published in print:: 2013
Published Online:: 2013-05-23

This book gathers twenty seven eminent moral, legal, and political philosophers, lawyers, and theologians to engage critically with the work of John Finnis, a pioneer in the development of a new yet classically-grounded theory of natural law, and contains a substantial reply by Finnis. Finnis' work offers a systematic philosophy of practical reasoning and moral choosing that addresses the great questions of the rational foundations of ethical judgments, the identification of moral norms, human agency and the freedom of the will, personal identity, the common good, the role and functions of law, the meaning of justice, and the relationship of morality and politics to religion and the life of faith. This book represents the first sustained, critical study of Finnis' contribution across the range of disciplines in which rational and morally upright choosing is a central concern. It includes a substantial response from Finnis himself, in which he comments on each of the twenty seven chapters and defends and develops his ideas and arguments.

Philosophical Foundations of the Nature of Law

Wil Waluchow and Stefan Sciaraffa — 2013-05-23

Author:: WilWaluchowSenator William McMaster Chair in Constitutional Studies, McMaster University, CanadaStefanSciaraffaProfessor, Department of Philosophy, McMaster University, Canada
ISBN:: 9780199675517
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199675517.001.0001
Published in print:: 2013
Published Online:: 2013-05-23

In recent years we have witnessed major developments in philosophical inquiry concerning the nature of law and, with the continuing development of international and transnational legal institutions, in the phenomenon of law itself. This book takes stock of current debates on the nature of law and the aims and methods of legal philosophy. The book covers four broad themes. The chapters within the first theme address and develop the traditional debates between legal positivism, natural law theory, and Dworkinian interpretivism. Chapters within the second theme focus on the power of coercion, often overlooked in contemporary legal philosophy. The third set of chapters addresses the aims and methods of legal theory, and the role of conceptual analysis. The final section explores new methods and issues in the subject, and offers fresh starting points for future work in the field.

Law and Language

Michael Freeman and Fiona Smith — 2013-05-23

Author:: MichaelFreemanemeritus Professor of English Law, University College LondonFionaSmithSenior lecturer, University College London
ISBN:: 9780199673667
Publisher:: Oxford University Press
Subjects:: Law, Comparative Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199673667.001.0001
Published in print:: 2013
Published Online:: 2013-05-23

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.

Forgotten Justice

Allan Beever — 2013-05-23

Author:: Allan Beever
ISBN:: 9780199675487
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Legal History
DOI:: 10.1093/acprof:oso/9780199675487.001.0001
Published in print:: 2013
Published Online:: 2013-05-23

Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state and community, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state. In the modern view, private law is understood as a method for achieving certain particular social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard. A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.

The Constitution of the Criminal Law

R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros — 2013-05-23

Author:: R.A.DuffProfessor of Law, University of Minnesota Law School, and professor emeritus, Department of Philosophy, University of StirlingLindsayFarmerSchool of Law, University of GlasgowS.E.MarshallDepartment of Philosophy, University of StirlingMassimoRenzoYork Law School, University of YorkVictorTadrosSchool of Law, University of Warwick
ISBN:: 9780199673872
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199673872.001.0001
Published in print:: 2013
Published Online:: 2013-05-23

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.

Statutory and Common Law Interpretation

Kent Greenawalt — 2013-01-24

Author:: Kent Greenawalt
ISBN:: 9780199756148
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199756148.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are “faithful agents” of the legislature or “independent cooperative partners.” It concludes that the obvious answer is that neither simple categorization really fits—that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the kinds of instructions contained in statutes. At the general level, the answer is “yes.” This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that “canons of interpretation,” such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted. The book's second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula. A final chapter compares statutory and common law interpretation, similarities, and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles.

Philosophical Foundations of European Union Law

Julie Dickson and Pavlos Eleftheriadis — 2013-01-24

Author:: Julie Dickson, Pavlos Eleftheriadis
ISBN:: 9780199588770
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199588770.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The supranational law of the European Union represents a uniquely powerful, far-reaching, and controversial instance of the growth of international legal governance, one that has forever altered the political and legal landscape of its Member States. The EU has attracted significant attention from political scientists, economists, and lawyers who have analyzed its polity and constructed theoretical models of the integration process. Yet it has been almost entirely neglected by analytic philosophers, and the philosophical tools that have been developed to analyze and evaluate the Union are still in their infancy. This book brings together legal philosophers, political philosophers, and EU legal academics in the service of developing the philosophical analysis of EU law. This book brings varied disciplinary expertise and theoretical perspectives to bear on central issues facing the Union and its law. Combining both abstract thought in legal and political philosophy and more tangible theoretical work on specific legal issues, the chapters in this volume hope to make a contribution to developing work on the philosophical foundations of EU law.

The Nature of Legislative Intent

Richard Ekins — 2013-01-24

Author:: Richard Ekins
ISBN:: 9780199646999
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780199646999.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Is legislative intent a fiction? The legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent, complex group intention. This book elucidates the nature of legislative intent, arguing that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. It argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation.

The Logic of Legal Requirements

Jordi Ferrer Beltrán and Giovanni Battista Ratti — 2013-01-24

Author:: JordiFerrer BeltránAssociate Professor and Director of the Chair of Legal Culture, University of GironaGiovanniBattista RattiJuan de la Cierva Fellow in Law, University of Girona
ISBN:: 9780199661640
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199661640.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

When a legal rule requires us to drive on the right, notarize our wills, or refrain from selling bootleg liquor, how are we to describe and understand that requirement? In particular, how does the logical form of such a requirement relate to the logical form of other requirements, such as moral requirements, or the requirements of logic itself? When a general legal rule is applied or distinguished in a particular case, how can we describe that process in logical form? Such questions have come to preoccupy modern legal philosophy as its methodology, drawing on the philosophy of logic, becomes ever more sophisticated. This book gathers together some of the most prominent legal philosophers in the Anglo-American and civil law traditions to analyse the logical structure of legal norms. They focus on the issue of defeasibility, which has become a central concern for both logicians and legal philosophers in recent years. The book is divided into four parts. Part One is devoted to unravelling the basic concepts related to legal defeasibility and the logical structure of legal norms, focusing on the idea that law, or its components, are liable to implicit exceptions, which cannot be specified before the law's application to particular cases. Part Two aims to disentangle the main relations between the issue of legal defeasibility and the issue of legal interpretation, exploring the topic of defeasibility as a product of certain argumentative techniques in the law. Part 3 of the volume is dedicated to one of the most problematic issues in the history of jurisprudence: the connections between law and morality. Finally, Part 4 of the volume is devoted to analysing the relationships between defeasibility and legal adjudication.

Linguistic Justice

Jacqueline Mowbray — 2013-01-24

Author:: Jacqueline Mowbray
ISBN:: 9780199646616
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199646616.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

As globalisation and migration produce societies of increasing linguistic diversity, the issue of how to ensure justice between speakers of different languages becomes a pressing social concern. Matters of ‘linguistic justice’ are therefore drawing increasing scholarly attention across a range of disciplines. How does international law contribute to linguistic justice? This book explores that question by conducting a comprehensive, interdisciplinary examination of international law on language, analysing the many disparate fields of international law which affect language use both directly (human rights, minority rights, and cultural heritage laws, for example) and indirectly (international trade law and international labour standards, among others). Moving beyond the technical analysis of legal provisions, the book explores the conceptual framework which underpins international law on language, unearthing underlying assumptions and ideas about what constitutes a ‘just’ language policy from a legal perspective. In doing so, the book draws on the methodology of sociologist Pierre Bourdieu, whose ideas of ‘habitus’ and ‘field’ offer a way of understanding the changing significance of language to human identity, and the way in which language becomes a focal point for the exercise of social power. This analysis reveals the limitations of contemporary international law on language, and charts a course towards the achievement of greater ‘linguistic justice’.

Law’s Evolution and Human Understanding

Laurence Claus — 2013-01-24

Author:: Laurence Claus
ISBN:: 9780199735099
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Legal Profession and Ethics
DOI:: 10.1093/acprof:oso/9780199735099.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book presents an evolutionary account of law and government. It contends that the law of any human community is a self-generating, self-recognizing system of human communications that signals likely action within that community. Law in effect is a system that uniquely serves and symbiotically defines a community regardless of any moral right claims. Understanding law as a self-fulfilling signaling system frees us to discard the fabrications of authority rooted in creationist accounts of law and government. The book articulates a fresh conception of law that builds on Oliver Wendell Holmes' celebrated insights concerning law's predictive potential. The book considers important implications of this new understanding for how we individually make moral choices, how we read law, and some of the many other ways that law affects our lives.

Law as a Leap of Faith

John Gardner — 2013-01-24

Author:: John Gardner
ISBN:: 9780199695553
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199695553.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have ‘constitutions’? Should everyone want to live under a system of law? Is there a special kind of ‘legal justice’? Does it consist simply in applying the law of the system? And how does it relate to the ideal of ‘the rule of law’? These and other classic questions in the philosophy of law form the subject-matter of this book. Taking an agenda broadly from H.L.A. Hart's The Concept of Law (1961), this book shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms — in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process the book engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin.

The Idea of Private Law

Ernest J Weinrib — 2013-01-24

Author:: Ernest J Weinrib
ISBN:: 9780199665815
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Law of Obligations
DOI:: 10.1093/acprof:oso/9780199665815.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book offers a new approach to understanding private law. Rejecting the functionalism popular among legal scholars, the book advances the idea that private law is an autonomous and non-instrumental moral practice, with its own structure and rationality. The book draws on Aristotle's account of corrective justice and Kant's legal philosophy to set out a formalist approach to private law that repudiates the identification of law with politics or economics. It argues that private law is to be understood as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. Private law embodies a special morality that links the doer and the sufferer of injury. The book elucidates the standpoint internal to this morality and traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. It also shows how this formalism manifests itself in the leading doctrines of private law. Finally, the book describes the public but non-political role of the courts in articulating the special morality of private law.

How Interpretation Makes International Law

Ingo Venzke — 2013-01-24

Author:: Ingo Venzke
ISBN:: 9780199657674
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199657674.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

The texts of international law cannot talk — they are talked about. They passively submit to the need for interpretation and gain meaning in their use. Contrary to classic and still pervasive narrative suggesting that sovereign states make the law that constraints them, the book shows that in many and most constellations the contents of legal commitments is the product interpretation which shifts meanings and makes law. In the practice of interpretation actors compete over what the law really says and contribute to its making. What then matters in such discourse is an actor’s semantic authority — the capacity to find acceptance for interpretative claims and the ability to establish new reference points for legal discourse. The book identifies the practice of interpretation as a significant space of international lawmaking and draws specific attention to the increasing weight of international institutions in the struggle for the law. Past theoretical approaches come down with significant shortcomings in understanding interpretation as a bounded practice that has both the capacity to create as well as the faculty to control. The book leans on developments in linguistics and builds on semantic pragmatism to overcome old divides and to offer a fresh account of how the practice of interpretation makes international law. Its analytical ambition is paralleled by a discussion of the strong normative implications that immediately arise once received understandings of interpretation and sources doctrine are debunked as myopic and powerless in relation to semantic changes. The book thus closes with a discussion of the bittersweet taste of justice in legal argument, tests the potential of international law and its doctrine to respond to semantic change, and ultimately ponders the possibilities of democratic justification of semantic authority in a normative pluriverse.

Corrective Justice

Ernest J. Weinrib — 2013-01-24

Author:: Ernest J. Weinrib
ISBN:: 9780199660643
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Law of Obligations
DOI:: 10.1093/acprof:oso/9780199660643.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

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.

Conscience and Conviction

Kimberley Brownlee — 2013-01-24

Author:: Kimberley Brownlee
ISBN:: 9780199592944
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199592944.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

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.

A Theory of Unborn Life

Anja J. Karnein — 2012-09-20

Author:: Anja J. Karnein
ISBN:: 9780199782475
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199782475.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

In light of new biomedical technologies, such as artificial reproduction, stem cell research, genetic selection and design, the question of what we owe to future persons and unborn life more generally, is as contested as ever. This book offers a new theory by showing how our commitments to persons can help us make sense of our obligations to unborn life. These commitments give us reasons to treat embryos that will develop into persons in anticipation of these persons. By contrast, embryos, which women want to abort or refuse to implant, can be discarded or used for research purposes. How viable is this theory? The book explores its attractiveness for Germany and the U.S.—two countries with very different approaches to valuing unborn life. However, another question raised by modern biomedical technologies concerns the legitimacy of genetically selecting and manipulating embryos. Parents might want to create persons with particular genetic properties. The book maintains that only some uses of these technologies do not violate what respect for persons, including those of the future, requires. Genetic interventions can only be legitimate if used to insure future persons’ independence. With this claim the book’s theory runs counter to liberal eugenic approaches that give parents wide-ranging entitlements to interfere with their future child’s genome, in the names of reproductive freedom, enhancing the species or social justice.

Targeted Killings

Claire Finkelstein, Jens David Ohlin, and Andrew Altman — 2012-09-20

Author:: ClaireFinkelsteinAlgernon Biddle Professor of Law and Professor of Philosophy, University of Pennsylvania; Co-Director, University of Pennsylvania Institute of Law and PhilosophyJens DavidOhlinAssociate Professor of Law, Cornell Law SchoolAndrewAltmanProfessor of Philosophy, Georgia State University; Director of Research, Jean Beer Blumenfeld Center for Ethics
ISBN:: 9780199646470
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199646470.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

The war on terror is remaking conventional warfare. The protracted battle against a non-state organization, the demise of the confinement of hostilities to an identifiable battlefield, the extensive involvement of civilian combatants, and the development of new and more precise military technologies have all conspired to require a rethinking of the law and morality of war. Just war theory, as traditionally articulated, seems ill-suited to justify many of the practices of the war on terror. The raid against Osama Bin Laden's Pakistani compound was the highest profile example of this strategy, but the issues raised by this technique cast a far broader net: every week the U.S. military and CIA launch remotely piloted drones to track suspected terrorists in hopes of launching a missile strike against them. In addition to the public condemnation that these attacks have generated in some countries, the legal and moral basis for the use of this technique is problematic. Is the U.S. government correct that nations attacked by terrorists have the right to respond in self-defense by targeting specific terrorists for summary killing? Is there a limit to who can legitimately be placed on the list? There is also widespread disagreement about whether suspected terrorists should be considered combatants subject to the risk of lawful killing under the laws of war or civilians protected by international humanitarian law. Complicating the moral and legal calculus is the fact that innocent bystanders are often killed or injured in these attacks. It discusses all aspects of targeted killing.

Principles and Values in Criminal Law and Criminal Justice

Lucia Zedner and Julian V. Roberts — 2012-09-20

Author:: LuciaZednerProfessor of Criminal Justice, Faculty of Law and Corpus Christi College, University of Oxford, and Conjoint Professor, Faculty of Law University of New South Wales, SydneyJulian V.RobertsProfessor of Criminology, University of Oxford
ISBN:: 9780199696796
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199696796.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

Celebrating the scholarship of Andrew Ashworth, Vinerian Professor of English Law at the University of Oxford, this book explores questions of principle and value in criminal law and criminal justice. Internationally renowned for elaborating a body of principles and values that should underpin criminalization, the criminal process, and sentencing, Ashworth's contribution to the field over forty years of scholarship has been immense. Advancing his project of exploring normative issues at the heart of criminal law and criminal justice, the chapters examine the important and fascinating debates in which Ashworth's influence has been greatest. The chapters fall into three distinct but related areas, reflecting Ashworth's primary spheres of influence. Those in Part 1 address the import and role of principles in the development of a just criminal law, with contributions focusing upon core tenets such as the presumption of innocence, fairness, accountability, the principles of criminal liability, and the grounds for defences. Part 2 addresses questions of human rights and due process protections in both domestic and international law. In Part 3 the chapters are addressed to core issues in sentencing and punishment: they explore questions of equality, proportionality, adherence to the rule of law, the totality principle (in respect of multiple offences), wrongful acquittals, and unduly lenient sentences. Together they demonstrate how important Ashworth's work has been in shaping how we think about criminal law and criminal justice, and make their own invaluable contribution to contemporary discussions of criminalization and punishment.

Constitutionalism and the Enlargement of Europe

Wojciech Sadurski — 2012-09-20

Author:: Wojciech Sadurski
ISBN:: 9780199696789
Publisher:: Oxford University Press
Subjects:: Law, EU Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199696789.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

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.

The Constitutional Structure of Proportionality

Matthias Klatt and Moritz Meister — 2012-09-20

Author:: Matthias Klatt, Moritz Meister
ISBN:: 9780199662463
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199662463.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

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.

Narratives of Islamic Legal Theory

Rumee Ahmed — 2012-05-24

Author:: Rumee Ahmed
ISBN:: 9780199640171
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199640171.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

In the critical period when Islamic law first developed, a new breed of jurists developed a genre of legal theory treatises to explore how the fundamental moral teachings of Islam might operate as a legal system. Seemingly rhetorical and formulaic, these manuals have long been overlooked despite the insights they offer into the early formation of Islamic conceptions of law and its role in social life. This book responds to the prevailing misconceptions about the purpose and form of the Islamic legal treatise by describing how Muslim jurists used the genre of legal theory to argue for individualized, highly creative narratives about the application of Islamic law while demonstrating loyalty to inherited principles and general prohibitions. These narratives are revealed through careful attention to the nuanced way in which legal theorists defined terms and concepts particular to the legal theory genre, and disclose multiple worlds in which Islamic law should ideally function. The text takes the reader into the logic of Islamic legal theory to uncover diverse conceptions of law and legal application in the Islamic tradition, clarifying and making accessible the sometimes obscure legal theories of central figures in the history of Islamic law. The book offers important insights about the ways in which legal philosophy and theology mutually influenced premodern jurists as they formulated their respective visions of law, ethics, and theology.

Law, Person, and Community

John J. Coughlin — 2012-05-24

Author:: John J. Coughlin
ISBN:: 9780199756773
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199756773.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book takes up the fundamental question “What is law?” through a comparative study of canon law and secular legal theory. Canon law is analogous to the concept of law described by secular theorists such as Austin, Kelsen, Holmes, and H. L. A. Hart. Consistent with the secular concept, canon law aims to set a societal order that harmonizes the interests of individuals and communities, secures peace, guarantees freedom, and establishes justice. At the same time, canon law reflects a claim about the spiritual end of the human person and religious nature of community. The comparison of one of the world's ancient systems of religious law with contemporary conceptions of law rooted in secular theory raises questions about the law's power to bind individuals and communities. For example, to what extent, does each of the approaches to law reflect the theory of Austin which understands law as a command given by the sovereign and backed by the coercive power of the state? Or, as H. L. A. Hart suggested, does law require an additional internal meaning that carries the power to bind? If internal meaning is a necessary constituent to law, how might religious and secular conceptions of it differ? In addition to these questions, this book asks the fundamental question “What is law?” through a comparative study of canon law and secular legal theory. This book also includes comparative consideration of the failure of canon law to address the clergy sexual abuse crisis, the canon law of marriage, administrative law, the rule of law, and equity. The book employs comparative methodology in an attempt to reveal and contrast the concepts of the human person reflected in both canon law and secular legal theory.

Institutionalized Reason

Matthias Klatt — 2012-05-24

Author:: MatthiasKlattProfessor of Law at the University of Hamburg
ISBN:: 9780199582068
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199582068.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the chapters is on Alexy's main pre-occupations — his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.

Hierarchy in International Law

Erika De Wet and Jure Vidmar — 2012-05-24

Author:: ErikaDe WetCo-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria; Professor of International Constitutional Law, University of AmsterdamJureVidmarAnglo-German Fellow, Institute of European and Comparative Law, Faculty of Law, University of Oxford
ISBN:: 9780199647071
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199647071.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

This book takes an inductive approach to the question of whether there is a hierarchy in international law, with human rights obligations trumping other duties. It assesses the extent to which such a hierarchy can be said to exist through an analysis of the case law of national courts. Each chapter of the book examines domestic case law on an issue where human rights obligations conflict with another international law requirement, to see whether national courts gave precedence to human rights. If this is shown to be the case, it would lend support to the argument that the international legal order is moving toward a vertical legal system, with human rights at its apex. In resolving conflicts between human rights obligations and other areas of international law, the practice of judicial bodies, both domestic and international, is crucial. Judicial practice indicates that norm conflicts typically manifest themselves in situations where human rights obligations are at odds with other international obligations, such as immunities; extradition and refoulement; trade and investment law; and environmental protection. This book sets out and analyses the relevant case law in all of these areas.

Crime and Punishment

Hyman Gross — 2012-05-24

Author:: Hyman Gross
ISBN:: 9780199644711
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199644711.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

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.

Understanding and Explaining Adjudication

William Lucy — 2012-03-22

Author:: William Lucy
ISBN:: 9780198260257
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198260257.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

This book analyses and defines the methodology and values of contemporary accounts of adjudication, which can be divided into orthodox philosophies on the one hand and heretical accounts on the other. It offers an incisive and original analysis of how these supposedly incompatible accounts actually differ. Through an evaluation of Neil MacCormick, Joseph Raz, and Ronald Dworkin as the principal exponents of the orthodoxy and Duncan Kennedy and Roberto Unger providing the heretical accounts, the book argues that there are few important differences between the two. Rather, the book concludes, both theories have acute problems in relation to the methodology and values they apply in interpreting adjudication.

Specialized Justice

Stephen H. Legomsky — 2012-03-22

Author:: Stephen H. Legomsky
ISBN:: 9780198254294
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198254294.001.0001
Published in print:: 1990
Published Online:: 2012-03-22

This book addresses the question of the desirability of specialization in the administration of justice. Should there be more, rather than less, sub-division of the judiciary into specialized tribunals? What is most desirable in terms of efficiency, speed, true justice, and cost? The author attempts to answer these questions by examining theoretical paradigms and by describing the results of an empirical study which he has undertaken. He concludes by investigating on variables that apply in different jurisdictions and which should, if accounted for properly, allow generalized lessons to be extracted from the individual studies.

RETROSPECTIVITY AND THE RULE OF LAW

Charles Sampford, Jennie Louise, Sophie Blencowe, and Tom Round — 2012-03-22

Author:: Charles Sampford, Jennie Louise, Sophie Blencowe, Tom Round
ISBN:: 9780198252986
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198252986.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

Retrospective rule making has few supporters and many opponents. Defenders of retrospective laws generally do so based on the premise that they are necessary evils in specific or limited circumstances, especially in terms of closing tax loopholes, dealing with terrorists or prosecuting fallen tyrants. Yet the reality of retrospective rule making is far more widespread than this, and ranges from ‘corrective’ legislation to ‘interpretive regulations’ and judicial decision making. The search for a rational justification for retrospective rule making necessitates a reconsideration of the very nature of the rule of law and the kind of law that can rule, and will provide new insights into the nature of law and the parameters of societal order. This book examines the various ways in which laws may be seen as retrospective and analyses the problems in defining retrospectives. In his investigation, the author asserts that the definitive argument against retrospective rule-making is the expectation of individuals that, if their actions today are considered by a future court, the applicable law at that time will be performed. The book goes on to suggest that although the strength of this ‘rule of law’ argument should prevail in general, exceptions are sometimes necessary, and that there may even be occasions when understanding of the rule of law may provide the foundation for the application of retrospective laws.

Realistic Socio-Legal Theory

Brian Z. Tamanaha — 2012-03-22

Author:: Brian Z. Tamanaha
ISBN:: 9780198298250
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198298250.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

Drawing on philosophical pragmatism, the author formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus the author explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled in a clear and concise fashion while articulating a social theory of law that draws equally from legal theory and socio-legal theory.

A Reader on Regulation

Robert Baldwin, Colin Scott, and Christopher Hood — 2012-03-22

Author:: RobertBaldwinLondon School of EconomicsColinScottLondon School of EconomicsChristopherHoodLondon School of Economics
ISBN:: 9780198765295
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198765295.001.0001
Published in print:: 1998
Published Online:: 2012-03-22

Regulation has become a key form of state activity and an area of burgeoning academic concern, both in public law and economics. This collection makes available to the reader a number of readings. The text considers the central topics of regulation and looks to theory as well as practice, enforcement as well as rule-making, and supra-national as well as domestic concerns. Particular attention is paid to the ways that regulatory developments can be explained, the choices of technique that confront regulators and the varieties of regulatory style that are encountered within and between different regimes. The introduction considers the maturation of regulation both as a practice and as a discipline. It examines regulation as a topic for study, reviews major developments in regulation, and outlines central themes.

Random Justice

Neil Duxbury — 2012-03-22

Author:: Neil Duxbury
ISBN:: 9780198268253
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198268253.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

Chance inevitably plays a role in law but it is not often that we consciously try to import an element of randomness into a legal process. This book explores the potential for the use of lotteries in social, and particularly legal, decision-making contexts. Utilising a variety of disciplines and materials, the book considers in detail the history, advantages, and drawbacks of deciding issues of social significance by lot and argues that the value of the lottery as a legal decision-making device has generally been underestimated. The very fact that there exists widespread resistance to the use of lotteries for legal decision-making purposes betrays a commonly held belief that legal processes are generally more important than are legal outcomes. Where, owing to the existence of indeterminacy, the process of reasoning is likely to be excessively protracted and the reasons provided strongly contestable, the most cost-efficient and impartial decision-making strategy may well be recourse to lot. Aversion to this strategy, while generally understandable, is not necessarily rational. Yet in law, reason is generally valued more highly than is rationality. The lottery is often conceived to be a decision-making device that operates in isolation. Yet lotteries can frequently and profitably be incorporated into other decision-frameworks. The book concludes by controversially considering how lotteries might be so incorporated and also advances the thesis that it may sometimes be sensible to require that adjudication takes place in the shadow of a lottery.

Provocation and Responsibility

Jeremy Horder — 2012-03-22

Author:: Jeremy Horder
ISBN:: 9780198256960
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198256960.001.0001
Published in print:: 1992
Published Online:: 2012-03-22

This book draws on historical and philosophical sources not normally linked in analysis of the criminal law, to provide a detailed study of the effect of provocation on culpability in morality and law. It traces the fascinating history and colourful development of the legal doctrine of provocation, right up to present-day controversies over the scope of the doctrine’s application in murder cases. These developments are illuminated throughout by setting them in the context of the changing moral and philosophical understanding of anger, its effect on responsibility, and the role it plays in the human character.

Practical Reason and Norms

Joseph Raz — 2012-03-22

Author:: Joseph Raz
ISBN:: 9780198268345
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198268345.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

This book focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force.

Playing by the Rules

Frederick Schauer — 2012-03-22

Author:: Frederick Schauer
ISBN:: 9780198258315
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198258315.001.0001
Published in print:: 1993
Published Online:: 2012-03-22

This is a philosophical but non-technical analysis of the very idea of a rule. Although focused somewhat on the role of rules in the legal system, it is also relevant to the place of rules in morality, religion, etiquette, games, language, and family governance. In both explaining the idea of a rule and making the case for taking rules seriously, the book is a departure both in scope and in perspective from anything that now exists.

The Philosophical Foundations of Tort Law

David G. Owen — 2012-03-22

Author:: David G.OwenUniversity of South Carolina
ISBN:: 9780198265795
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198265795.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

This collection of 22 chapters on the philosophical fundamentals of tort law assembles many of the world’s leading commentators on this conjunction of law and philosophy. The contributions range broadly, from inquiries into how tort law derives from Aristotle, Thomas Aquinas, and Immanuel Kant to the latest economic and rights-based theories of legal responsibility. A closing chapter illuminates how tort law enables philosophers to observe the abstract theories of their discipline put to a concrete test in the legal resolution of real-world controversies based on principles of right and wrong.

Patterns of American Jurisprudence

Neil Duxbury — 2012-03-22

Author:: Neil Duxbury
ISBN:: 9780198264910
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198264910.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The book argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, it demonstrates that American jurisprudence has evolved as a collection of themes which reflect broader American intellectual and cultural concerns.

Objectivity in Law

Nicos Stavropoulos — 2012-03-22

Author:: Nicos Stavropoulos
ISBN:: 9780198258995
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198258995.001.0001
Published in print:: 1996
Published Online:: 2012-03-22

The question of objectivity in legal interpretation has emerged in recent years as an important topic in contemporary jurisprudence. This book addresses the issue of how and in what sense legal interpretation can be objective. It supports the possibility of objectivity in law and spells out the content of objectivity involved. It then provides a defence against the classical, as well as the less well-known, objections to the possibility of objectivity in legal interpretation. The discussion is thoroughly grounded in metaphysics, which sets the book apart from other similar discussions in jurisprudence. The book identifies an important source of resistance to the acceptance of the possibility of objectivity in legal interpretation; a widely held but faulty semantic. It then develops an alternative semantic framework, drawing on influential theories in contemporary philosophy. The book shows that objectivism is a natural, commonsensical position, and rejects the currently popular notion that objectivism requires extravagant or bizarre metaphysics. Furthermore, the discussion presents the opportunity to re-interpret major debates in jurisprudence and to show how influential theories, notably H. L. A. Hart's and Ronald Dworkin's, bear on that issue.

Normativity and Norms

Stanley L. Paulson — 2012-03-22

Author:: Stanley L.PaulsonWashington University, St Louis and Bonnie Litschewski Paulson
ISBN:: 9780198763154
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198763154.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of the best work extant on Kelsen's theory, including chapters newly translated into English. The volume addresses in detail the topic where debate on Kelsen's work has been liveliest: ‘normativity’ as Kelsen's alternative to both traditional legal positivism and natural law theory. The book covers such topics as competing philosophical positions on the nature of law, legal validity, legal powers, and the unity of municipal and international law. It also throws much light on Kelsen's intellectual milieu — as well as his intellectual debts.

Norm and Nature

Roger A. Shiner — 2012-03-22

Author:: Roger A. Shiner
ISBN:: 9780198257196
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198257196.001.0001
Published in print:: 1992
Published Online:: 2012-03-22

This book deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy: law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. It has three theses. Firstly, that the opposition to positivism is based on acceptance of, rather than rejection of, claims made by positivism. Secondly, that the conflict between positivism and anti-positivism is irresolvable, and finally, that the understanding of why this is so is the key to the understanding of the nature of law. Tension between formal and substantive considerations comprises the essence of law. The central theses presuppose that anti-positivism or natural law theory is defensible as an account of the nature of law. More than half the book, therefore, is a criticism of the prevailing orthodoxy of legal positivism and a defence of an anti-positivist view, making it important not only for the originality of its central theses, but also for its critique of positivism and for the thoroughness of its examination of contemporary legal thought.

Natural Law, Liberalism, and Morality

Robert George — 2012-03-22

Author:: RobertGeorgePrinceton University
ISBN:: 9780199243006
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199243006.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

This book brings together leading defenders of natural law and liberalism for a series of frank and lively exchanges touching upon critical issues of contemporary moral and political theory. The book is an example of the fruitful engagement of traditions of thought about fundamental matters of ethics and justice.

The Moral Limits of Law

Ruth C. A. Higgins — 2012-03-22

Author:: Ruth C. A. Higgins
ISBN:: 9780199265671
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199265671.001.0001
Published in print:: 2004
Published Online:: 2012-03-22

This book analyses the related debates concerning the moral obligation to obey the law, conscientious citizenship, and state legitimacy. Modern societies are drawn in a tension between the centripetal pull of the local and the centrifugal stress of the global. Boundaries that once appeared permanent are now permeable: transnational legal, economic, and trade institutions increasingly erode the autonomy of states. Nonetheless transnational principles are still typically effected through state law. For law's subjects, this tension brings into focus the interaction of legal and moral obligations and the legitimacy of state authority. This volume incorporates a comprehensive critical analysis of the methodology and substance of the debates in recent legal, political, and moral philosophy, regarding political obligation and the moral obligation to obey the law. The author argues that traditional accounts of political obligation that assume a bounded conception of the polity are no longer tenable. The author therefore presents an original theory of the conscientious agent's attitude towards law that accommodates the contemporary social tension between local and global obligations.

Marxism and Law

Hugh Collins — 2012-03-22

Author:: Hugh Collins
ISBN:: 9780192851444
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780192851444.001.0001
Published in print:: 1984
Published Online:: 2012-03-22

In this introduction to Marxism and the law, this book presents a unified and coherent view of Marxism, which it uses to examine the specific characteristics of legal institutions, rules, and ideals. The book pays particular attention to the place of ideology in law, the distinction between base and superstructure, and the destiny of law in a Communist society. Its principal theme is the Marxist critique of the ideal of the Rule of Law. The book argues that the main purpose of a Marxist theory of law is to expose the belief in the Rule of Law as being a subtle and pervasive ideology which serves to obscure the structures of class domination within the State. The book frequently subjects the Marxist approach to criticism and it shows that many of the Marxist claims about law are unproven or misconceived.

Making Men Moral

Robert P. George — 2012-03-22

Author:: Robert P. George
ISBN:: 9780198260240
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198260240.001.0001
Published in print:: 1995
Published Online:: 2012-03-22

Contemporary liberal thinkers commonly suppose that there is something principally unjust about the legal prohibition of putatively victimless immoralities. Against the prevailing liberal view, the book defends the proposition that ‘moral laws’ can play a legitimate, if subsidiary, role in preserving the ‘moral ecology’ of the cultural environment in which people make the morally significant choices by which they form their characters and influence, for good or ill, the moral lives of others. It shows that a defence of morals legislation is fully compatible with a ‘pluralistic perfectionist’ political theory of civil liberties and public morality.

Legal Right and Social Democracy

Neil MacCormick — 2012-03-22

Author:: Neil MacCormick
ISBN:: 9780198255024
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198255024.001.0001
Published in print:: 1984
Published Online:: 2012-03-22

This book provides a collection of interrelated chapters that investigate and argue about issues of concern for contemporary lawyers and politicians. The chapters combine a scholarly regard for leading thinkers of the past and present, and a stringently argued view about questions of political obligation.

Legal Reasoning and Legal Theory

Neil MacCormick — 2012-03-22

Author:: Neil MacCormick
ISBN:: 9780198763840
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198763840.001.0001
Published in print:: 1994
Published Online:: 2012-03-22

What makes an argument in a law case good or bad? Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences? These questions are central to the study of jurisprudence, and are critically examined in this book.

Law's Community

Roger Cotterrell — 2012-03-22

Author:: Roger Cotterrell
ISBN:: 9780198264903
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198264903.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

This book offers a distinctive analysis of law, identifying political and moral problems that are fundamental to contemporary legal theory. It portrays contemporary law as institutionalised doctrine, emphasising ways in which legal modes of thought influence wider currents of understanding and belief in contemporary Western societies. Exploring relationships between law and sociology as contrasting and competing fields of knowledge, this book develops ideas from social theory to identify key problems for legal development; in particular, those of restoring moral authority to law and of elaborating a concept of community that can guide legal regulation. The analysis leads to radical conclusions: among them, that law's functions need reconsideration at the most general level, that a unitary state legal system as portrayed in traditional kinds of legal theory may no longer be adequate in complex contemporary societies, and that law should be reconceptualised as a diverse, but co-ordinated plurality of systems, sites, and forms of regulation.

Law, Language, and Legal Determinacy

Brian Bix — 2012-03-22

Author:: Brian Bix
ISBN:: 9780198260509
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198260509.001.0001
Published in print:: 1995
Published Online:: 2012-03-22

This book discusses the role of language within law, and the role of philosophy of language in understanding the nature of law. The book argues that the major re-thinking of the common and ‘common sense’ views about law that have been proposed by various recent legal theorists are unnecessary.

Law in Modern Society

Denis Galligan — 2012-03-22

Author:: Denis Galligan
ISBN:: 9780199291830
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199291830.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

This book considers how legal theory, and particularly H. L. A Hart's The Concept of Law, has developed the idea of law as a highly developed social system, which has a distinctive character and structure, and which shapes and influences people's behaviour. The concept of law as a distinct social phenomenon is examined through reference to, and analysis of, the works of M. Weber, E. Durkheim, and N. Luhmann. The book is guided by the idea that the law is a social formation with its own character and features, and that it is interrelated with other aspects of society. A general framework for law and society considers various aspects including: the nature of social rules and the concept of law as a system of rules; whether law has particular social functions and how legal orders run in parallel; coercion; the characteristic form of modern law; implementation and compliance; and laws aimed at bringing about change in society.

Law in Context

William Twining — 2012-03-22

Author:: William Twining
ISBN:: 9780198264835
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198264835.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

The central theme of this book is that law is a marvellous subject of study, but to do justice to its potential requires an enlargement of vision, multiple perspectives, and a radical reappraisal of the role, culture, and practices of law schools. Treating theory, education, scholarship, publishing, and professional practice as complementary activities, the book explores the history, philosophy, and practical problems of attempts to broaden the study of law in a disciplined way. It draws upon personal experience of law schools throughout the common law world and special knowledge of jurisprudence, evidence, torts, and legal method to examine a wide range of topics in depth. These include, for example, the nature and tasks of legal theory, different kinds of legal literature, and access to legal education and the profession.

Law as a Moral Idea

Nigel Simmonds — 2012-03-22

Author:: Nigel Simmonds
ISBN:: 9780199552191
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199552191.001.0001
Published in print:: 2008
Published Online:: 2012-03-22

This book argues that the institutions of law, and the structures of legal thought, are to be understood by reference to a moral ideal. The idea of law is an ideal of freedom, or independence from the power of others. The moral value and justificatory force of law are not contingent upon circumstance, but intrinsic to its character as law. Doctrinal legal arguments are shaped by rival conceptions of the conditions for realisation of the idea of law. In making these claims, the author rejects the viewpoint of much contemporary legal theory, and seeks to move jurisprudence closer to an older tradition of philosophical reflection upon law, exemplified by Hobbes and Kant. Modern analytical jurisprudence has tended to view these older philosophies as confused, precisely in so far as they equate an understanding of law's nature with a revelation of its moral basis. According to most contemporary legal theorists, the understanding and analysis of existing institutions is quite distinct from any enterprise of moral reflection. But the relationship between ideals and practices is much more intimate than this approach would suggest. Some institutions can be properly understood only when they are viewed as imperfect attempts to realise moral or political ideals; and some ideals can be conceived only by reference to their expression in institutions.

Law and Sociology

Michael Freeman — 2012-03-22

Author:: MichaelFreemanProfessor of English Law, University College London
ISBN:: 9780199282548
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199282548.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

This book contains a broad range of chapters about the interactions between law and sociology. In common with earlier volumes in the Current Legal Issues series, it seeks both a theoretical and methodological focus. The volume includes amongst other topics, a sociology of jurisprudence, an examination of the social dynamics of regulatory interactions, and a consideration of the place of legal culture in the sociology of law. This book is also the product of the international interdisciplinary colloquium.

Law and Religion

Richard O'Dair and Andrew Lewis — 2012-03-22

Author:: RichardO'DairSenior Lecturer in Laws, University College LondonAndrewLewisSenior Lecturer in Laws, University College London
ISBN:: 9780199246601
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199246601.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

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.

Law and Psychology

Belinda Brooks-Gordon and Michael Freeman — 2012-03-22

Author:: BelindaBrooks-GordonLecturer in Psychology, Birkbeck College, LondonMichaelFreemanProfessor of English Law, University College London
ISBN:: 9780199211395
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199211395.001.0001
Published in print:: 2006
Published Online:: 2012-03-22

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.

Law and Popular Culture

Michael Freeman — 2012-03-22

Author:: MichaelFreemanProfessor of English Law, University College London
ISBN:: 9780199272235
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199272235.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

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.

Law and Medicine

Michael Freeman and Andrew Lewis — 2012-03-22

Author:: MichaelFreemanUniversity College LondonAndrewLewisUniversity College London
ISBN:: 9780198299189
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Medical Law
DOI:: 10.1093/acprof:oso/9780198299189.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

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.

Law and History

Andrew Lewis and Michael Lobban — 2012-03-22

Author:: AndrewLewisProfessor of Comparative Legal History, University of LondonMichaelLobbanReader in Law, Queen Mary, University of London
ISBN:: 9780199264148
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199264148.001.0001
Published in print:: 2004
Published Online:: 2012-03-22

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.

Law and Geography

Jane Holder and Carolyn Harrison — 2012-03-22

Author:: JaneHolderCarolynHarrison
ISBN:: 9780199260744
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199260744.001.0001
Published in print:: 2003
Published Online:: 2012-03-22

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.

Law and Disagreement

Jeremy Waldron — 2012-03-22

Author:: Jeremy Waldron
ISBN:: 9780198262138
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198262138.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

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.

The Jurisprudence of the Iran-United States Claims Tribunal

George H. Aldrich — 2012-03-22

Author:: George H. Aldrich
ISBN:: 9780198258056
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198258056.001.0001
Published in print:: 1996
Published Online:: 2012-03-22

The Iran–United States Claims Tribunal is the most important source of international arbitral decisions for at least the past half-century, and its decisions have contributed significantly to the development of international law and the law of international commercial transactions. This book is about the jurisprudence of the Tribunal. It seeks to preserve and to make accessible the substantial body of Awards and Decisions rendered by the Tribunal during the years since it was first established. The Tribunal’s hundreds of Awards and Decisions may be individually consulted (there are 27 volumes so far), but hitherto there has been no detailed analytical guide through its vast published work. This book provides a two-fold service. First, it quotes from the most significant Awards and Decisions at sufficient length so that both their substance and the reasoning of the Tribunal can be understood from access to the present volume alone. Second, it organizes and summarizes the decisions to facilitate finding complete texts relevant to any particular issue.

Introduction to the Problems of Legal Theory

Hans Kelsen, Bonnie Litschewski Paulson, and Stanley L. Paulson — 2012-03-22

Author:: Hans Kelsen, Bonnie Litschewski Paulson, Stanley L. Paulson
ISBN:: 9780198265658
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198265658.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

Hans Kelsen is considered to be one of the foremost legal theorists and philosophers of the 20th century. His writing made an important contribution to many areas, especially those of 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, or Pure Theory of Law, the first edition of which was published in Vienna in 1934. This is the first English translation of that work. It covers such topics as law and morality, the legal system and its hierarchical structure, the identity of law and state, and international law.

In Defense of Natural Law

Robert George — 2012-03-22

Author:: Robert George
ISBN:: 9780198267713
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198267713.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

Making Men Moral questioned the central doctrines of liberal jurisprudence and political theory. This new work extends a critique of liberalism, and also goes beyond it to show how contemporary natural law theory provides a superior way of thinking about basic problems of justice and political morality. Not content merely to defend natural law from its ‘cultural despisers’; the book turns the tables and deploys the idea to mount a stunning attack on regnant liberal beliefs about such issues as abortion, sexuality, and the place of religion in public life.

Human Dignity in Bioethics and Biolaw

Beyleveld Deryck and Brownsword Roger — 2012-03-22

Author:: Beyleveld Deryck, Brownsword Roger
ISBN:: 9780198268260
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198268260.001.0001
Published in print:: 1993
Published Online:: 2012-03-22

The concept of human dignity is increasingly invoked in bioethical debate and, indeed, in international instruments concerned with biotechnology and biomedicine. While some commentators consider appeals to human dignity to be little more than rhetoric and not worthy of serious consideration, this book gives such appeals distinct and defensible meaning through an application of the moral theory of Alan Gewirth. In Part One, the book seeks to bring human dignity more clearly into focus. It sketches two opposed conceptions, ‘human dignity as empowerment’, which treats human rights as based on the intrinsic dignity of humans, identified with individual autonomy, and ‘human dignity as constraint’, which acts as an umbrella for a number of duty-driven approaches. While viewing human dignity primarily as empowerment, the chapters argue that it is not autonomy as such, but vulnerable agency around which dignity as the basis of human rights is to be analyzed. Alongside this, they develop the idea of dignity as a virtue, specifically as a practical attitude to be cultivated in the face of human finitude and vulnerability. At its sharpest, dignity as a virtue indicates the aspirational path of responsible and rational agency in the context of the existential anxiety that is part and parcel of the human condition. During this analysis this book pays particular attention to the similarities and differences between Kantian and Gewirthian theory. In Part Two, the chapters apply their analysis of dignity as generating rights and responsibilities to a range of activities (such as pre-natal selection, commodification of the human body, cloning, and euthanasia) running from birth with dignity through to death with dignity, and subject the use of ‘human dignity’ in existing regulatory frameworks to critical scrutiny.

Hart’s Postscript

Jules L. Coleman — 2012-03-22

Author:: Jules L.ColemanYale Law School
ISBN:: 9780198299080
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198299080.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

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.

General Theory of Norms

Hans Kelsen and Michael Hartney — 2012-03-22

Author:: Hans Kelsen, Michael Hartney
ISBN:: 9780198252177
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198252177.001.0001
Published in print:: 1991
Published Online:: 2012-03-22

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.

Eunomia

Philip Allott — 2012-03-22

Author:: Philip Allott
ISBN:: 9780199244935
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199244935.001.0001
Published in print:: 2001
Published Online:: 2012-03-22

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.

Ethics in the Public Domain

Joseph Raz — 2012-03-22

Author:: Joseph Raz
ISBN:: 9780198260691
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198260691.001.0001
Published in print:: 1995
Published Online:: 2012-03-22

This new collection opens with a pivotal chapter, not previously published, on the implications of the moral duties which arise out of concern for the well-being of others. The first part of the book concentrates on the consequences of two central aspects of well-being: the importance of membership in groups — the role of belonging — and the active character of well-being — that it largely consists in successful activities. Both aspects have far-reaching political implications, explored in chapters on free expression, national self-determination, and multiculturalism, among others. Against the background of the moral and political views developed in the first part, the second part of the book explores various aspects of the dynamic interrelations between law and morality, offering some building blocks towards a theory of law.

Essays on Bentham

H. L. A. Hart — 2012-03-22

Author:: H. L. A. Hart
ISBN:: 9780198254683
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198254683.001.0001
Published in print:: 1982
Published Online:: 2012-03-22

This book is both an exposition and a critical assessment of some central issues in jurisprudence and political theory. Chapter themes include Bentham's identification of the forms of mystification protecting the law from criticism, his relation to Beccaria and his conversion to democratic radicalism.

Essays in Jurisprudence and Philosophy

H. L. A. Hart — 2012-03-22

Author:: H. L. A. Hart
ISBN:: 9780198253884
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198253884.001.0001
Published in print:: 1983
Published Online:: 2012-03-22

The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in 1953 as Professor of Jurisprudence at Oxford. Originally published in England, the United States, and elsewhere, in many different journals and books, these chapters cover a wide range of topics. They include Professor Hart's first attempt to demonstrate the relevance of linguistic philosophy to jurisprudence, and his first defence of the form of legal positivism later developed in his Concept of Law; his studies of the distinctive teaching of American and Scandinavian jurisprudence; a general survey of the problems of legal philosophy; and an examination of three different attempts to provide a foundation for basic human rights or liberties, and of the notion of ‘social solidarity’ as a justification for the enforcement of conventional morality. Five of the chapters are devoted to the work of Jhering, Kelsen, Holmes, and Lon Fuller. The final chapter brings a philosophical distinction to bear on the solution to a perplexity which has long plagued lawyers, concerning the notion of an attempt to commit a crime. The Introduction gives an account of the main influences on Professor Hart's work; considers the main criticisms of it; and identifies the points where he now considers he was mistaken.

Due Process and Fair Procedures

D. J. Galligan — 2012-03-22

Author:: D. J. Galligan
ISBN:: 9780198256762
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198256762.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

Due process is one of the most interesting and conceptually challenging areas of the common law, and in recent years there has been a major revival of interest in the sheer range and applicability of the term. In this book, the author offers a study of the underlying principles of due process and fair procedures, and sets the discussion within a broad comparative and theoretical framework. In landmark decisions such as Ridge v. Baldwin (1968) the courts in Britain and other parts of the Commonwealth have begun to recognize the importance of procedural fairness across a broad spectrum of official powers and decisions. Principles have begun to emerge, and yet the courts have not so far developed an approach that is entirely adequate to the task. In this book, the author traces the development of these principles within a framework which includes analysis and critique of legal developments in the major common law jurisdictions, and which relates these developments to similar ideas under both the European Convention on Human Rights and the American Constitution.

Discretionary Powers

D. J. Galligan — 2012-03-22

Author:: D. J. Galligan
ISBN:: 9780198256526
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198256526.001.0001
Published in print:: 1990
Published Online:: 2012-03-22

One noticeable feature of modern legal systems is the extent to which power is conferred upon government officials and agencies to be exercised at their discretion, according to policy considerations, rather than according to precise legal standards. This book is a legal and jurisprudential analysis of discretionary power in modern legal systems, with particular emphasis on the consequences of discretion in the relationship between the individual and the state.

The Culture of Control

David Garland — 2012-03-22

Author:: David Garland
ISBN:: 9780199258024
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199258024.001.0001
Published in print:: 2002
Published Online:: 2012-03-22

This book charts the changes in crime control and criminal justice that have occurred in Britain and America. It then explains these transformations by showing how the social organization of late modern society has prompted a series of political and cultural adaptations that alter how governments and citizens think and act in relation to crime. The book presents an analysis of contemporary crime control, revealing its underlying logics and rationalities, and identifying the social relations and cultural sensibilities that have produced this new culture of control. In developing a ‘history of the present’ in the field of crime control, the book presents an intertwined history of the welfare state and the criminal justice state, a theory of social and penal change, and an account of how social order is constructed. Drawing on research in the UK and the USA, it shows how the social, economic, and cultural forces of the late 20th century have reshaped criminological thought, public policy, and the cultural meaning of crime and criminals. The shifting policies of crime and punishment, welfare and security — and the changing class, race and gender relations that underpin them — are viewed as aspects of the problem of governing late modern society and creating social order in a rapidly changing world.

Criminal Attempts

R. A. Duff — 2012-03-22

Author:: R. A. Duff
ISBN:: 9780198262688
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198262688.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

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.

The Concept of a Legal System

Joseph Raz — 2012-03-22

Author:: Joseph Raz
ISBN:: 9780198253631
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198253631.001.0001
Published in print:: 1980
Published Online:: 2012-03-22

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.

Causation in the Law

H. L. A. Hart and Tony Honoré — 2012-03-22

Author:: H. L. A. Hart, Tony Honoré
ISBN:: 9780198254744
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198254744.001.0001
Published in print:: 1985
Published Online:: 2012-03-22

This text is an updated and extended second edition supporting the findings of its well-known predecessor which claimed that courts employ common-sense notions of causation in determining legal responsibility.

The Business of Judging

Tom Bingham — 2012-03-22

Author:: Tom Bingham
ISBN:: 9780198299127
Publisher:: Oxford University Press
Subjects:: Law, Legal Profession and Ethics, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198299127.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

Judges spend their public lives in courtrooms. They speak to the public through their judgments. But senior judges are frequently invited to contribute to professional, judicial, or academic conferences or publications, on whatever topic engages the attention of the audience at the time. This book contains a selection of the essays and addresses written or given by the present Senior Law Lord (as a Queen's Bench judge, Lord Justice of Appeal, Master of the Rolls, and the Lord Chief Justice of England and Wales) over the last 15 years or so, touching on a wide range of legally related topics.

The Autonomy of Law

Robert P. George — 2012-03-22

Author:: Robert P.GeorgePrinceton University
ISBN:: 9780198267904
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198267904.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

This collection of original essays from distinguished legal philosophers offers a challenging assessment of the nature and viability of legal positivism, an approach to legal theory that continues to dominate contemporary legal theoretical debates. To what extent is the law adequately described as autonomous? Should legal theorists maintain a conceptual separation of law and morality?

The authority of law

Joseph Raz — 2012-03-22

Author:: Joseph Raz
ISBN:: 9780198253457
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780198253457.001.0001
Published in print:: 1979
Published Online:: 2012-03-22

This revised edition of one of the classic works of modern legal philosophy, first published in 1979, represents the author's contribution which has had an enduring influence on philosophical work on the nature of law and its relation to morality. The new edition includes two previously uncollected essays and a new introduction from the author.

Well-Being and Fair Distribution

Matthew Adler — 2012-01-19

Author:: Matthew Adler
ISBN:: 9780195384994
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780195384994.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

This book addresses a range of relevant theoretical issues, including the possibility of an interpersonally comparable measure of well-being, or “utility” metric; the moral value of equality, and how that bears on the form of the social welfare function; social choice under uncertainty; and the possibility of integrating considerations of individual choice and responsibility into the social-welfare-function framework. This book also deals with issues of implementation, and explores how survey data and other sources of evidence might be used to calibrate both a utility metric and a social welfare function, and whether distributive goals are ever best pursued through regulation rather than the tax system. In working through this range of theoretical and practical issues, the book draws from a wide variety of literatures, including philosophical scholarship on equality, responsibility, the nature of well-being, and personal identity over time; the social choice literature within economics; applied economic literatures concerning the measurement of inequality and poverty; legal and policy-analysis scholarship on cost-benefit analysis, environmental justice, and the choice between regulation and taxation; and the burgeoning field of “happiness studies”.

The Structures of the Criminal Law

R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros — 2012-01-19

Author:: R.A.DuffDepartment of Philosophy, University of StirlingLindsayFarmerSchool of Law, University of GlasgowS.E.MarshallDepartment of Philosophy, University of StirlingMassimoRenzoYork Law School, University of YorkVictorTadrosSchool of Law, University of Warwick
ISBN:: 9780199644315
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199644315.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

This book is part of a series arising from an interdisciplinary investigation into the issue of criminalization, focussing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. This is the second volume in the series and it concerns itself with the structures of criminal law in three different senses. The first examines the internal structure of the criminal law itself and the questions posed by familiar distinctions between which offences are typically analysed. These questions of classification include discussion of the growing range of crimes and the problems posed by this broadening of definition. Should traditional ideas and conceptions of the criminal law be reshaped in light of recent developments or should these developments be criticized and refuted? Structures of criminal law also refer to the place of the criminal law within the larger structure of the law. Here, the book examines the relationships with and between the criminal law and other aspects of law, particularly private law and public law. It also looks at how the criminal law is made, and by whom. Finally, the third sense of structure is outlined — the relationships between legal structures and social and political structures. What place does the criminal law have within the existing political and social landscapes? What are the influences, both political and social, upon the criminal law, and should they be allowed to influence the law in this fashion? What is its proper role?

Sovereignty's Promise

Evan Fox-Decent — 2012-01-19

Author:: Evan Fox-Decent
ISBN:: 9780199698318
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199698318.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Political theory is concerned with the justification and limits of state power. Its questions include: Can states legitimately direct and coerce nonconsenting subjects? If they can, what limits, if any, constrain sovereign power? Public law is concerned with the justification and limits of judicial power. Its questions include: On what grounds can judges ‘read down’ or ‘read in’ statutory language against the apparent intention of the legislature? What limits, if any, are appropriate to these exercises of judicial power? This book develops an original fiduciary theory of authority that yields novel answers to both sets of questions. The author argues that the state is a fiduciary of its people, and that this fiduciary relationship grounds the state’s authority to announce and enforce law. The fiduciary state is conceived of as a public agent of necessity charged with guaranteeing a regime of secure and equal freedom. Whereas the social contract tradition struggles to ground authority on consent, the fiduciary theory explains authority with reference to the state’s fiduciary obligation to respect legal principles constitutive of the rule of law. This obligation arises from the state’s possession of irresistible public powers. The author begins with a discussion of Hobbes’ conception of legality and the problem of discretionary power in administrative law. Drawing on Kant, he sketches a theory of fiduciary relations, and develops the argument through three parts. Part I shows that it is possible for the state to stand in a public fiduciary relationship to its people through a discussion of Crown-Native fiduciary relations recognised by Canadian courts. Part II sets out the theoretical underpinnings of the fiduciary theory of the state. Part III explores the implications of the fiduciary theory for administrative law and common law constitutionalism. The final chapter situates the theory within a broader philosophical discussion of the rule of law.

Reflections on 'The Concept of Law'

A. W. Brian Simpson — 2012-01-19

Author:: A. W. Brian Simpson
ISBN:: 9780199693320
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199693320.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

HLA Hart's The Concept of Law is one of the most influential works of philosophy of the 20th century, redefining the field of legal philosophy and introducing generations of students to philosophical reflection on the nature of law. Since its publication in 1961 an industry of academic research and debate has grown up around the book, disputing, refining, and developing Hart's work. Under the sheer volume of competing interpretations of the book the original contexts — cultural and intellectual — that shaped Hart's project can be obscured. This book attempts to sweep aside the volumes of academic criticism and return to ‘Troy I’, revealing the world of post-war Oxford that produced Hart and his famous book. Drawing on personal experience of studying and teaching in Oxford at the time Hart developed The Concept of Law, this book recreates the social and intellectual culture of Oxford philosophy and the law faculty in the 1950s. It traces Hart's early work and influences, within and outside Oxford, showing how Hart developed his picture of philosophy and its potential for enriching the understanding of law. It also lays bare the painful shortcomings of post-war Oxford academia, depicting a world of eccentric dons and intellectual Cyclopses — isolated and closed to broad, interdisciplinary exchange — arguing that Hart did not escape from the limitations of his intellectual world.

Lords of the Land

Mark Hickford — 2012-01-19

Author:: Mark Hickford
ISBN:: 9780199568659
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199568659.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The recognition and allocation of indigenous property rights have long posed complex questions for the imperial powers of the mid-nineteenth century and their modern successors. Recognizing rights of property raises questions about pre-existing indigenous authority and power over land that continue to trouble the people and governments of settler states. Through focusing on the settlement of New Zealand during the critical period of the 1830s through to the early 1860s, this book offers a fresh assessment of the histories of indigenous property rights and the jurisprudence of empire. It shows how native title became not only a key construct for relations between Empire and tribes, but how it acted more broadly as a constitutional frame within which discourses of political authority formed and were contested at the heart of Empire and the colonial peripheries. Native title thus becomes another episode in imperial political history in which increasingly fierce and highly polemical contestation burst into violence. Native title explodes as a form of civil war that lays the foundation (by Maori ever after challenged) for revised constitutional orders. This book considers histories of indigenous property rights not only as the stuff of entwined streams of a law of nations and constitutional theory but also as exemplars of the politics of negotiability — engaging relations of struggle and ambition for power, together with the openness and limits of incoming settler polities towards indigenous polities and laws. This study is an examination of rights as instruments of analysis and political discourse, constructed and contested in and through time. Anchored in the striking experiences of New Zealand and the politics of trans-oceanic empire, it tells a tale of indigenous political autonomy and how the vocabularies of property rights mediated relations between empire and the indigenous political communities found in newly settled lands.

Law's Relations

Jennifer Nedelsky — 2012-01-19

Author:: Jennifer Nedelsky
ISBN:: 9780195147964
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780195147964.001.0001
Published in print:: 2012
Published Online:: 2012-01-19

Autonomy is one of the core concepts of legal and political thought, yet also one of the least understood. The prevailing theory of liberal individualism characterizes autonomy as independence, yet from a social perspective, this conception is glaringly inadequate. In this brilliantly innovative work, Jennifer Nedelsky claims that we must rethink our notion of autonomy, rejecting the usual vocabulary of control, boundaries, and individual rights. If we understand that we are fundamentally in relation to others, she argues, we will recognize that we become autonomous with others—with parents, teachers, employers, and the state. We should not therefore regard autonomy as merely a conceptual tool for assigning rights, but as a capacity that can be fostered or undermined throughout one's life through the relationships and the societal structures we inhabit. The political project thus should not only be to protect the individual from the state and keep the state out, but to use law to construct relations with the state that enhance autonomy. Law's Relations includes many concrete legal applications of her theory of relational autonomy, offering new insights into the debates over due process, judicial review, violence against women, and private versus public law.

Formalism and the Sources of International Law

Jean d'Aspremont — 2012-01-19

Author:: Jean d'Aspremont
ISBN:: 9780199696314
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199696314.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

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).

The Ethics of Capital Punishment

Matthew H. Kramer — 2012-01-19

Author:: Matthew H. Kramer
ISBN:: 9780199642182
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199642182.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Though much of this book is devoted to impugning all the standard rationales for capital punishment, the chief purpose of the volume is to advance an alternative justification for such punishment in a very limited range of cases. Pursuing both a project of critical debunking and a project of partial vindication, the book presents a rationale for the death penalty that is free-standing rather than an aspect or offshoot of a general theory of punishment. Its purgative rationale has not heretofore been propounded in any contemporary philosophical and practical debates over the death penalty. While the volume contributes to many areas of normative ethics, it contributes above all to the philosophy of criminal law with a fresh rationale for the use of the death penalty and with probing assessments of all the major theories of punishment that have been broached by jurists and philosophers for centuries.

The Ends of Harm

Victor Tadros — 2012-01-19

Author:: Victor Tadros
ISBN:: 9780199554423
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199554423.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

Victor Tadros sets out to defend the ‘duty view’ of punishment. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognise that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognise that what they have done is wrong, but also to protect others from crime. Hence, the book offers a defence not only of a communicative view of punishment but also of general deterrence as central to the justification of punishment. This view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. The book offers the most systematic exploration of the relationship between self-defence and punishment to date and makes significant progress in defending a plausible set of non-consequentialist moral principles. It also critically explores other theories of punishment, including retributivism and purely communicative theories, identifying unexamined deficiencies in these theories.

What is Criminology?

Mary Bosworth and Carolyn Hoyle — 2011-09-22

Author:: MaryBosworthReader in Criminology, University of Oxfordhttp://www.law.ox.ac.uk/profile/mary.bosworthCarolynHoyleReader in Criminology, University of Oxfordhttp://www.law.ox.ac.uk/profile/hoylec
ISBN:: 9780199571826
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199571826.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Criminology is a booming discipline, yet one which can appear divided and fractious. The chapters in this book respond to a series of questions designed to investigate the state, impact, and future challenges of the discipline: What is criminology for? What is the impact of criminology? How should criminology be done? What are the key issues and debates in criminology today? What challenges does the discipline of criminology face? How has criminology as a discipline changed over the last few decades? The chapters identify a series of intellectual, methodological, and ideological borders. Borders, in criminology as elsewhere, are policed, yet they are also frequently transgressed; criminologists can and do move across them to plunder, admire, or learn from other regions. While some boundaries may be more difficult or dangerous to cross than others it is rare to find an entirely secluded locale or community. In traversing ideological, political, geographical, and disciplinary borders, criminologists bring training, tools, and concepts, as well as key texts to share with foreigners. From such exchanges, over time, borders may break down, shift, or spring up, enriching those who take the journey and those who are visited. It is, in other words, in criminology's capacity for and commitment to reflexivity, on which the strength of the field depends.

Religion and Public Reasons

John Finnis — 2011-09-22

Author:: John Finnis
ISBN:: 9780199580095
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199580095.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

The twenty-four chapters in this volume seek to argue for and illustrate a central element in the author's theory of natural law: that the main tenets of personal and political morality, and of a good legal order, are taught both by reason (arguments accessible to everyone) and by authentic divine revelation (teachings accessible to all who have a reasonable faith in its witnesses). The first Part includes eight chapters. Two attend to the idea of public reason, both in its proper sense and its Rawlsian deformation. One vindicates in outline for treating a religion as part of public reason, and for giving constitutional protection to religions (within due limits now being tested by the emergence of a politically aggressive religion in Western societies). One takes up Plato's warning about the political evils of some kinds of secularism, another surveys the principles of a sound relation between religion and state, and the last addresses Catholics about their participation in liberal discourse and politics. The nine chapters in Part Two include a substantial engagement with the relativizing idea of ‘historical consciousness’ and a variety of reflections (including three sermons) on the preambles to acceptance of revelation and on the content of Judeo-Christian revelation. The main chapter in Part Three studies Newman's idea of conscience in his debate with Gladstone. The seven chapters in Part Four, Controversies, are contributions to debates about world order, natural law, nuclear deterrence, the ‘consistent ethic of life’, the ‘culture of death’, contraception, and hell.

Reason in Action

John Finnis — 2011-09-22

Author:: John Finnis
ISBN:: 9780199580057
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199580057.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book collects nineteen published and unpublished works presented here as chapters on practical reason. The first nine date from 1970 through to 2008. They include extended critiques of Hume's thesis that reason, being the slave of the passions, concerns means, not ultimate or intrinsically desirable and intelligible ends; of Christine Korsgaard's Kantian development of her successful critique of Hume; of Jürgen Habermas's theory of discourse ethics; of Bernard Williams's semi-Nietzschean theory of truth and its value; of Matthew Kramer's attempted refutation of the chapter showing the self-refutation of scepticism about the value of truth; and of the theories of value or ethics proposed by Philippa Foot, Jacques Maritain, Bernard Lonergan, and others. Part Two groups together critiques of standard accounts of Aristotle's theory of action's ultimate point; of Terence Irwin's puzzlement about whether prudentia (practical reasonableness) extends to the identification and acknowledgement of ends; of Leo Strauss's denial of exceptionless moral norms; and of the accounts of legal reasoning offered by Economic Analysis of Law, by Critical Legal Studies, and by Ronald Dworkin. Part Three begins with a wide-ranging study of commensurability and incommensurability in practical reasoning. Then, after a critique of John Rawls's theory of public reason, the book ends with three early chapters on freedom of speech, with particular but by no means exclusive focus on issues related to pornography and literary-aesthetic distance.

Philosophy of Law

John Finnis — 2011-09-22

Author:: John Finnis
ISBN:: 9780199580088
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199580088.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This volume collects twenty-two chapters, grouped in four parts. These include two recent appreciations and critiques of Hart's legal and political theories; a thorough appreciation and critique of Dworkin's Law's Empire, and of Raz's theory of authority and coordination; and critiques of John Gardner on legal positivism and of Jules Coleman and Brian Leiter on positivism and naturalism. Aquinas is celebrated as founder of a sound account of law's positivity. Weber's accounts of the fact-value distinction, and of legitimation, Unger's theory of indeterminacy in law, Posner's law and economics and mishandling of intention, Kelsen's (and the courts') struggles with revolution, Hohfeld's misinterpreters on rights, Blackstone's architecture of the law, and John Paul II on legitimately enacting unjust laws are all subjects for detailed studies. One very long chapter and one short one survey the sweep of legal theory's history and main elements.

Philosophical Foundations of Language in the Law

Andrei Marmor and Scott Soames — 2011-09-22

Author:: AndreiMarmorProfessor of Philosophy & Maurice Jones Jr Professor of Law, University of Southern Californiahttp://weblaw.usc.edu/contact/contactInfo.cfm?detailID=234ScottSoamesDirector, School of Philosophy, University of Southern Californiahttp://www-rcf.usc.edu/~soames/
ISBN:: 9780199572380
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199572380.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book brings together the best contemporary philosophical work in the area of the intersection between philosophy of language and the law. Some of the contributors are philosophers of language who are interested in applying advances in philosophy of language to legal issues, and some of the participants are philosophers of law who are interested in applying insights and theories from philosophy of language to their work on the nature of law and legal interpretation. By making this body of recent work available in a single volume, this book gives both a general overview of the various interactions between language and law, and also detailed analyses of particular areas in which this interaction is manifest. The contributions to this volume are grouped under three main general areas: The first area concerns a critical assessment, in light of recent advances in philosophy of language, of the foundational role of language in understanding the nature of law itself. The second main area concerns a number of ways in which an understanding of language can resolve some of the issues prevalent in legal interpretation, such as the various ways in which semantic content can differ from law's assertive content; the contribution of presuppositions and pragmatic implicatures in understanding what the law conveys; the role of vagueness in legal language, for example. The third general topic concerns the role of language in the context of particular legal doctrines and legal solutions to practical problems, such as the legal definitions of inchoate crimes, the legal definition of torture, or the contractual doctrines concerning default rules.

Law and the Culture of Israel

Menachem Mautner — 2011-09-22

Author:: Menachem Mautner
ISBN:: 9780199600564
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199600564.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Within a short span of time in the course of the 1980s, the Supreme Court of Israel effected far-reaching changes in its legal doctrine and in the way it perceives its role among the state's branches. This book locates those changes in the context of the great historical process that took shape in Israel in the second half of the 1970s: the decline of the political, social, and cultural hegemony of the labor movement, and the renewal of the struggle over the future orientation of the country's culture. Two social groups have confronted each other at the heart of this struggle: a secular group that is aiming to strengthen Israel's ties to Western liberalism, and a religious group intent on associating Israel's culture with traditional Jewish heritage and the Halakhah. The Supreme Court — the institution most closely identified with liberalism since the establishment of the state — collaborated with the former group in its struggle against the latter. The story of the Court serves as the axis of another two stories. The first deals with the struggle over the cultural identity of the Jewish people throughout the course of modernity. The second is the story of the struggle over the cultural identity of Israeli law, which took place throughout the 20th century. In addition to the divide between secular and religious Jews, there is a national divide in Israel between Jews and Arabs. These two divides are interrelated in complex ways which shape the unique traits of Israel's multicultural condition. The book ends with a few suggestions as to how, given this condition, Israel's regime, political culture and law should be constituted in the coming decades. The suggestions borrow from the discourses of liberalism, multiculturalism, and republicanism.

Intention and Identity

John Finnis — 2011-09-22

Author:: John Finnis
ISBN:: 9780199580064
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199580064.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This volume contains nineteen published and unpublished chapters from 1987 to 2009. They are grouped into four parts. The chapters in the first part examine the ways in which being a person grounds the equality of all human beings, acknowledged as law's point even in Roman law and, rather shakily, in modern legal theory (Kelsen, Hart, Dworkin); legal rules can be seen as relationships between persons; persons are primary bearers of meaning and objects of legal interpretation, various aspects of personal identity (both natural and acquired by self-determination) are depicted by Aquinas and Shakespeare (better than Locke); and the reality of human spirit and dignity was vindicated by Elizabeth Anscombe's account of even simple physical gestures. Part Two groups four chapters. The first two carefully analyse what is involved in any group's acting and, consequently, its existence as a group, taking off from Hart's and Dworkin's inconclusive discussions of corporate persons, Honoré's showing of the importance of links and interaction, Thomas Nagel's attempt to distinguish public from private morality, and Scruton's elaborate discussion of corporate persons. The second two seek to show the importance and conditions for nations and national identity, in the face of arguments for a cosmopolitan morality, and of Dworkin's and Raz's arguments about respect and insult. Part Three is the longest part and the seven chapters include close studies of the idea of intention (and of willing, more generally) in Aquinas (poorly understood by many modern theologians, but centre on equally close analysis of intention (including conditional intention) in recent English criminal law, in Anglo-American law of torts, in recent English anti-discrimination law, and more generally. Part Four is about individuality or identity in early human embryonic existence, and in the severely injured conditions often called ‘brain death’ (as discussed by Peter Singer) or, less severe, ‘permanent vegetative syndrome’ (as judicially discussed in Bland).

The Idea of Labour Law

Guy Davidov and Brian Langille — 2011-09-22

Author:: GuyDavidovVice-Dean and Elias Lieberman Chair in Labour Law at the Hebrew University of Jerusalemhttp://law.huji.ac.il/eng/segel.asp?cat=441&in=441&staff_id=95&staff_page=309BrianLangilleProfessor of Law at the University of Torontohttp://www.law.utoronto.ca/faculty_content.asp?itemPath=1/3/0/0/0&profile=32&cType=facMembers
ISBN:: 9780199693610
Publisher:: Oxford University Press
Subjects:: Law, Employment Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199693610.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Labour law is widely considered to be in crisis, at least by scholars of the field. This crisis has an obvious external dimension—labour law is attacked for impeding efficiency, flexibility and development; vilified for reducing employment and for favouring already well placed employees over less fortunate ones; and discredited for failing to cover the most vulnerable workers and workers in the ‘informal sector’. These are just some of the external challenges to labour law. There is also an internal challenge, as labour lawyers themselves increasingly question whether their discipline is conceptually coherent, relevant to the new empirical realities of the world of work, and normatively salient in the world as we now know it. The goal of this book is to respond to such fundamental challenges by asking the most fundamental questions: What is labour law for? How can it be justified? And what are the normative premises on which reforms should be based? There has been growing interest in such questions in recent years. The current book seeks to take this body of scholarship seriously and take it forward. Its aim is to provide, if not answers which satisfy everyone, at least intellectually nourishing food for thought for those interested in understanding, explaining and interpreting labour laws.

Human Rights and Common Good

John Finnis — 2011-09-22

Author:: John Finnis
ISBN:: 9780199580071
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199580071.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This volume collects twenty-two published and unpublished chapters on a variety of topics related directly to human rights, justice, and the common good. The first nine date from 1970 through to 2007. They begin with a study — in dialectic with Dworkin's earlier lecture on the same themes — of the bearing of contemporary legal and political theory on the incorporation of a declaration of rights and freedoms in British law. There follow chapters on place of rights, and of duties to oneself, in Kant's moral and legal theory and some contemporary interpreters of Kant; on the application classical conceptions of distributive justice to modern problems; on the emergence of the ideal of government limited by, inter alia, respect for human rights, and contemporary distortions of the ideal that are proposed by Rawls, Dworkin, and followers of theirs (not least in relation to marriage); on the place of civic virtues and respect for diverse persons in constitutional order; and two chapters on the great question of migration rights and the legitimacy of national boundaries preventing free and equal migration. Part Two groups three chapters on the justice of punishment, concluding with the mature statement of retribution's place as punishment's formative justifying aim, in engagement especially with Nietzsche's ‘genealogy of morals’. Part Three surveys just way theory in its historic development and current shape. Parts Four, Five, and Six each group three chapters: on autonomy, justice, and euthanasia; on autonomy, justice, and human reproduction; and on marriage in its relation to justice and the common good.

Engineering Equality

Alexander Somek — 2011-09-22

Author:: Alexander Somek
ISBN:: 9780199693375
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, EU Law
DOI:: 10.1093/acprof:oso/9780199693375.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

Anti-discrimination law increasingly appears to occupy the centre of a renewed understanding of solidarity in the European Union. Not only is it, owing to its focus on equal treatment as regards positions and opportunities, compatible with the task of providing market access, it also seems to complement usefully the social legislation of the Member States. In the face of the widespread downsizing of the old national Welfare state, anti-discrimination law is indeed destined to be perceived as a common European achievement in the social sphere that is not merely reminiscent of a bygone age of government largesse. The book cautions, however, against premature exultation. The book uses legal analysis in order to expose the intrinsic shortcomings of anti-discrimination law, which fails to provide adequate legal guidance and invites, therefore, supplementation by pedagogical projects of social engineering. The book draws variously on the case law of the European Court of Justice, thereby exposing the bounded indeterminacy of anti-discrimination law. It points out how, because of its normative deficiency, it is systematically vulnerable to degeneration into pure casuistry. Moreover, the book also explains how the normative weakness is tacitly addressed in anti-discrimination policy’s recent move from legislation towards softer modes of modifying attitudes and behavior. The book concludes with observations concerning alternative models of solidarity in the Union.

The Boundaries of the Criminal Law

R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros — 2011-09-22

Author:: R.A.DuffDepartment of Philosophy, University of Stirlinghttp://www.philosophy.stir.ac.uk/staff/a-duff/duff-page.phpLindsayFarmerSchool of Law, University of Glasgowhttp://www.gla.ac.uk/schools/law/staff/lindsayfarmer/S.E.MarshallDepartment of Philosophy, University of StirlingMassimoRenzoLecturer in Law, University of Yorkhttp://www.york.ac.uk/law/staff/staffprofile%20MR.htmVictorTadrosProfessor of Criminal Law and Legal Theory, School of Law, University of Warwickhttp://www2.warwick.ac.uk/fac/soc/law/staff/academic/tadros/
ISBN:: 9780199600557
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199600557.001.0001
Published in print:: 2010
Published Online:: 2011-09-22

The series Criminalization is a set of volumes arising from an interdisciplinary investigation into criminalization, focussing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the six volumes in this series aim to tackle the key questions at the heart of issue: By reference to what principles and goals should legislations decide what to criminalize? How should criminal wrongs be classified and differentiated? And how should law enforcement officials apply the law's specification of offences? This book is the first book in this series examining the scope and boundaries of the criminal law. Investigations into the scope of the criminal law have often focused on the harm principle, the principle that conduct can be justifiably criminalized only if it is harmful, or other master principles that might determine the proper scope of the criminal law. These chapters aim to make significant advances in the development of a broader range of ideas that might inform criminalization decisions. A range of issues are discussed, including the significance for criminalization of ideas of moral wrongdoing and of using a person as a means, the distinction between criminal law and other forms of legal regulation, the role of new technology in our understanding of the evolving scope of the criminal law, and the role of criminal justice officials in decision-making about criminalization. The chapters draw on legal and philosophical sources, and also on history, sociology, and social psychology in their investigations.

Philosophical Foundations of Criminal Law

R.A. Duff and Stuart Green — 2011-05-01

Author:: R.A.DuffDepartment of Philosophy, University of Stirling, and the University of Minnesota Law Schoolhttp://www.philosophy.stir.ac.uk/staff/a-duff/duff-page.phpStuartGreenProfessor of Law at Rutgers Law School-Newarkhttp://law.newark.rutgers.edu/our-faculty/faculty-profiles/stuart-p-green
ISBN:: 9780199559152
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Criminal Law and Criminology
DOI:: 10.1093/acprof:oso/9780199559152.001.0001
Published in print:: 2011
Published Online:: 2011-05-01

The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range of perceived threats have pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines — notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world. Topics covered in this book include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; and the relationship between international criminal law and domestic criminal law.