It is a settled rule of international law that a State may not rely on the provisions of its 'internal law' as justification for failing to comply with international obligations. However, the judiciaries of most countries, including those with a high record of compliance with international norms, have increasingly felt the need to preserve the area of fundamental principles, where the State's inclination to retain full sovereignty seems to act as an unbreakable 'counter-limit' to the limitations deriving from international law. This volume explores this trend by adopting a comparative perspective, addressing the question of how conflicts between international law and national fundamental principles are dealt with and resolved within a specific legal system. The contributing authors identify common tendencies and fundamental differences in the approaches and evaluate the implications of this practice for the future of the principle of supremacy of international law.

An all-inclusive, exhaustive evaluation of the foreign policy of the European Union.Ten years ago the 2009 Lisbon Treaty put into place the legal and structural foundations for the European Union to play a role as a global actor. In the decade since, the EU itself has undergone intense political and economic stress, from debt crises to the rise of nationalist parties and the strains of Brexit. What effect have these changes had on the EU's foreign policy and its role in the world? This new edition of The Foreign Policy of the European Union offers an up-to-date and comprehensive examination of that question. The globe-spanning contributions to the book include a look at relations between Brussels and its regional neighbors, including Russia; the tensions that have arisen with the United States during the Trump administration; and the burgeoning relationship with China. How the EU is dealing with issues such as migration, terrorism, trade, and security round out the volume.

Common morality—in the form of shame, outrage, and stigma—has always been society’s first line of defense against ethical transgressions. Social mores crucially complement the law, Mark Osiel shows, sparing us from oppressive formal regulation. Much of what we could do, we shouldn’t—and we don’t. We have a free-speech right to be offensive, but we know we will face outrage in response. We may declare bankruptcy, but not without stigma. Moral norms constantly demand more of us than the law requires, sustaining promises we can legally break and preventing disrespectful behavior the law allows. Mark Osiel takes up this curious interplay between lenient law and restrictive morality, showing that law permits much wrongdoing because we assume that rights are paired with informal but enforceable duties. People will exercise their rights responsibly or else face social shaming. For the most part, this system has worked. Social order persists despite ample opportunity for reprehensible conduct, testifying to the decisive constraints common morality imposes on the way we exercise our legal prerogatives. The Right to Do Wrong collects vivid case studies and social scientific research to explore how resistance to the exercise of rights picks up where law leaves off and shapes the legal system in turn. Building on recent evidence that declining social trust leads to increasing reliance on law, Osiel contends that as social changes produce stronger assertions of individual rights, it becomes more difficult to depend on informal tempering of our unfettered freedoms. Social norms can be indefensible, Osiel recognizes. But the alternative—more repressive law—is often far worse. This empirically informed study leaves little doubt that robust forms of common morality persist and are essential to the vitality of liberal societies.

Public Finance and Parliamentary Constitutionalism analyses constitutionalism and public finance (tax, expenditure, audit, sovereign borrowing and monetary finance) in Anglophone parliamentary systems of government. The book surveys the history of public finance law in the UK, its export throughout the British Empire, and its entrenchment in Commonwealth constitutions. It explains how modern constitutionalism was shaped by the financial impact of warfare, welfare-state programs and the growth of central banking. It then provides a case study analysis of the impact of economic conditions on governments' financial behaviour, focusing on the UK's and Australia's responses to the financial crisis, and the judiciary's position vis-a-vis the state's financial powers. Throughout, it questions orthodox accounts of financial constitutionalism (particularly the views of A. V. Dicey) and the democratic legitimacy of public finance. Currently ignored aspects of government behaviour are analysed in-depth, particularly the constitutional role of central banks and sovereign debt markets.

After overthrowing the Mongol Yuan dynasty, Zhu Yuanzhang, the founder of the Ming dynasty (1368-1644), proclaimed that he had obtained the Mandate of Heaven (Tianming), enabling establishment of a spiritual orientation and social agenda for China. Zhu, emperor during the Ming's Hongwu reign period, launched a series of social programs to rebuild the empire and define Chinese cultural identity. To promote its reform programs, the Ming imperial court issued a series of legal documents, culminating in The Great Ming Code (Da Ming lu), which supported China's legal system until the Ming was overthrown and also served as the basis of the legal code of the following dynasty, the Qing (1644-1911). This companion volume to Jiang Yonglin's translation of The Great Ming Code (2005) analyzes the thought underlying the imperial legal code. Was the concept of the Mandate of Heaven merely a tool manipulated by the ruling elite to justify state power, or was it essential to their belief system and to the intellectual foundation of legal culture? What role did law play in the imperial effort to carry out the social reform programs? Jiang addresses these questions by examining the transformative role of the Code in educating the people about the Mandate of Heaven. The Code served as a cosmic instrument and moral textbook to ensure "all under Heaven" were aligned with the cosmic order. By promoting, regulating, and prohibiting categories of ritual behavior, the intent of the Code was to provide spiritual guidance to Chinese subjects, as well as to acquire political legitimacy. The Code also obligated officials to obey the supreme authority of the emperor, to observe filial behavior toward parents, to care for the welfare of the masses, and to maintain harmonious relationships with deities. This set of regulations made officials the representatives of the Son of Heaven in mediating between the spiritual and mundane worlds and in governing the human realm. This study challenges the conventional assumption that law in premodern China was used merely as an arm of the state to maintain social control and as a secular tool to exercise naked power. Based on a holistic approach, Jiang argues that the Ming ruling elite envisioned the cosmos as an integrated unit; they saw law, religion, and political power as intertwined, remarkably different from the "modern" compartmentalized worldview. In serving as a cosmic instrument to manifest the Mandate of Heaven, The Great Ming Code represented a powerful religious effort to educate the masses and transform society. The open access publication of this book was made possible by a grant from the James P. Geiss and Margaret Y. Hsu Foundation.

This new scholarly edition of Samuel Pufendorf's seminal The Whole Duty of Man According to the Law of Nature is among the first to suggest a purely conventional basis for natural law. Pufendorf wrote this work to make his insights accessible to a wide range of readers, especially university students, who were struggling with issues of church and state. Although indebted to Hobbes and Grotius, the work outlines a new understanding of ethics and politics, one suited to states that were emerging from the aftermath of religious civil war.

Little attention has been paid to the development of Australian private law throughout the first half of the twentieth century. Using the law of tort as an example, Mark Lunney argues that Australian contributions to common law development need to be viewed in the context of the British race patriotism that characterised the intellectual and cultural milieu of Australian legal practitioners. Using not only primary legal materials but also newspapers and other secondary sources, he traces Australian developments to what Australian lawyers viewed as British common law. The interaction between formal legal doctrine and the wider Australian contexts in which that doctrine applied provided considerable opportunities for nuanced innovation in both the legal rules themselves and in their application. This book will be of interest to both lawyers and historians keen to see how notions of Australian identity have contributed to the development of an Australian law.

In the early second century CE, two Jewish women, Babatha and Salome Komaise, lived in the village of Maoza on the southern coast of the Dead Sea. This was first part of the Nabataean Kingdom, but came under direct Roman rule in 106 CE as part of the province of Roman Arabia. The archives these two women left behind not only provide a tantalizing glimpse into their legal lives and those of their families, but also offer a vivid window onto the ways in which the inhabitants of this region interacted with their new rulers and how this affected the practice of law in this part of the Roman Empire. The papers in these archives are remarkable in their legal diversity, detailing Babatha and Salome Komaise's property and marriages, as well as their disputes. Nabataean, Roman, Greek, and Jewish legal elements are all in evidence, and are often combined within a single papyrus. As such, identifying the supposed 'operative law' of the documents has proven a highly contentious task: scholarly advocates of each of these traditions have failed to reach any true consensus and there remains division particularly between those who argue for a 'Roman' versus a 'Jewish' framework. Taking its lead from recent advances in the scholarship of Roman law, this volume proposes a change in focus: instead of attempting to identify the 'legal system' behind the documents, it seeks instead to understand the 'legal culture' of the community that produced them. Through a series of case studies of the people involved in the creation of the papyri - the scribes, legal advisors, local arbitrators, Roman judges, and the litigants themselves - we can build up a picture of the ways in which they variously perceived and approached the legal transactions, and thus of legal practice itself as being heavily influenced by the particular agents involved. This study therefore moves away from a systematic approach towards an historical study of ideas, attitudes, and perceptions of law, arguing that concentration on different agents' understandings will ultimately help scholars to better understand the actual functioning of law and justice in this particular localized legal culture and in other similar small communities in the Roman Empire.

Consumer protection law in the age of globalization poses new challenges for policy makers. This book provides an international perspective on consumer law and the difficulties encountered by consumers in search of practical remedies and solutions for defective products and services. Leading scholars outline the key problems faced by legislators in different countries seeking to adapt consumer laws to the global marketplace. Topics include standard form contracts; the legal challenges posed by mass infection (such as mad-cow disease and CJD); consumers and services; consumer bankruptcy law; and cross-border transactions.

Was the Roman Empire just? Did Rome acquire her territories through just wars, and did Rome's rule exert a civilizing effect, ultimately beneficial for its subjects? Or was Roman imperialism a massive injustice - the bellicose conquest and absorption of countless peoples and large swaths of territory under false pretences, driven by greed and a lust for domination and glory? In The Wars of the Romans (1599), the important Italian jurist and Regius Professor of Civil Law at Oxford University Alberico Gentili (1552-1608) argues both sides of the debate. In the first book he lays out the case against the justice of the Roman Empire, and in the second book the case for.
Gentili's polemic and highly engaging work helped pioneer the use of Roman law and just war theory in what became a leading international law approach to the enduring questions of the justice of empire. Writing in the wake of the first wave of European colonial expansion in the Americas, and relying on models of the controversy about Roman imperialism from Cicero to Lactantius and Augustine, Gentili developed the arguments which were to become pivotal in normative debates concerning imperialism. In this work Gentili, a consummate Roman law scholar, frames the moral and practical issues in a combination of Roman legal terminology and the language of natural law, a combination which was to prove highly influential in the literature from Grotius onward on natural law, the law of nations and what eventually became international law.

Comparative constitutional law has a long pedigree, but the comparative study of constitution-making has emerged and taken form only in the last quarter-century. While much of the initial impetus came from the study of the American and French constituent assemblies in the late eighteenth century, this volume exemplifies the large comparative scope of current research. The contributors discuss constituent assemblies in South East Asia, North Africa and the Middle East, Latin America, and in Nordic countries. Among the new insights they provide is a better understanding of how constituent assemblies may fail, either by not producing a document at all or by adopting a constitution that fails to serve as a neutral framework for ordinary politics. In a theoretical afterword, Jon Elster, an inspirational thinker on the current topic, offers an analysis of the micro-foundations of constitution-making, with special emphasis on the role of crises-generated passions.

Despues de mas de cinco decadas de conflicto social y armado, el gobierno de Colombia y las FARC firmaron en noviembre del ano 2016 un acuerdo para poner fin a la confrontacion militar que causo casi seis millones de victimas. Este proceso de paz reune a muchas organizaciones y personas que han experimentado el conflicto de diferentes maneras y quieren contribuir a su fin. Con el multifacetico posconflicto, comienza la fase fragil de la consolidacion. Las actas del Simposio de Frankfurt presentan este proceso a nivel transnacional en dialogo germano-colombiano. Desde perspectivas interdisciplinares personajes renombrados de Colombia y Alemania, en su mayoria participantes en el proceso de paz, analizan los siguientes aspectos transversales del (pos)conflicto: las negociaciones de paz, la genealogia, los actores y las victimas; la construccion de la memoria historica y la memoria colectiva, la justicia transicional, la pobreza y la desigualdad social como causas principales de la guerra; las iniciativas de la sociedad civil, la migracion y la memoria, asi como el papel social de la literatura y el cine.

Bringing together a team of international experts from different subject areas - including law, history, archaeology and anthropology - this book re-evaluates the traditional narratives surrounding the origins of Roman law before the enactment of the Twelve Tables. Much is now known about the archaic period, relevant evidence from later periods continues to emerge and new methodologies bring the promise of interpretive inroads. This book explores whether, in light of recent developments in these fields, the earliest history of Roman law should be reconsidered. Drawing on the critical axioms of contemporary sociological and anthropological theory, the contributors yield new insights and offer new perspectives on Rome's early legal history. In doing so, they seek to revise our understanding of Roman legal history as well as to enrich our appreciation of its culture as a whole.

From outlawing polygamy and mandating public education to protecting the rights of minorities, the framing of group life by the state has been a subject of considerable interest and controversy throughout the history of the United States. The subject continues to be important in many countries. This book deals with state responses to cultural difference through the examination of a number of encounters between individuals, groups, and the state, in the United States and elsewhere. The book opens the concepts of groups and the state, arguing for the complexity of their relations and interpenetrations.

Carol Weisbrod draws on richly diverse historical and cultural material to explore various structures that have been seen as appropriate for adjusting relations between states and internal groups. She considers the experience of the Mormons, the Amish, and Native Americans in the United States, the Mennonites in Germany, and the Jews in Russia to illustrate arrangements and accommodations in different times and places. The Minorities Treaties of the League of Nations, political federalism, religious exemptions, nonstate schools, and rules about adoption are among the mechanisms discussed that sustain cultural difference and create frameworks for group life, and, finally, individual life. At bottom, "Emblems of Pluralism" concerns not only relations between the state and groups, public and private, but also issues of identity and relations between the self and others.

One of family law's greatest challenges within the 21st Century is facing the decreased rate of marriages and the increased number of unmarried co-habiting couples. All over the world, lawmakers and courts have met this challenge with different legal solutions. Currently, eleven American jurisdictions recognize the doctrine of common law marriage, but for other jurisdictions have abolished the doctrine within the last fifteen years. Common Law Marriage presents a thorough legal history of common law marriage, from its origins to current law and possible future developments in law. Dr. Goeran Lind researches current law by analyzing American cases, discussing the legal requirements for the establishment of a common law marriage, as to capacity, contract, implied agreement, cohabitation, holding out, and burdens of proof. As Lind points out, due to the choice of law principles, courts all over the United States must decide on common law marriages on a case-by-case basis. As long as couples move from one state to another, individual state courts in the United States must apply the doctrine of common law marriage and decide if such a marriage has been established when a couple has lived in, or visited, a common law marriage state. Common Law Marriage provides an avid look at the level of expertise regarding the doctrine of common law marriage and expresses the evident need for guidance concerning it.

Many companies that have become household names have avoided billions in taxes by 'parking' their valuable intellectual property (IP) assets in holding companies located in tax-favored jurisdictions. In the United States, for example, many domestic companies have moved their IP to tax-favored states such as Delaware or Nevada, while multinational companies have done the same by setting up foreign subsidiaries in Ireland, Singapore, Switzerland, and the Netherlands. In this illuminating work, tax scholar Jeffrey A. Maine teams up with IP expert Xuan-Thao Nguyen to explain how the use of these IP holding companies has become economically unjustified and socially unacceptable, and how numerous calls for change have been made. This book should be read by anyone interested in how corporations - including Gore-Tex, Victoria's Secret, Sherwin-Williams, Toys-R-Us, Apple, Microsoft, and Uber - have avoided tax liability with IP holding companies and how different constituencies are working to stop them.

For centuries, most people believed the criminal justice system worked - that only guilty defendants were convicted. DNA technology shattered that belief. DNA has now freed more than three hundred innocent prisoners in the United States. This book examines the lessons learned from twenty-five years of DNA exonerations and identifies lingering challenges. By studying the dataset of DNA exonerations, we know that precise factors lead to wrongful convictions. These include eyewitness misidentifications, false confessions, dishonest informants, poor defense lawyering, weak forensic evidence, and prosecutorial misconduct. In Part I, scholars discuss the efforts of the Innocence Movement over the past quarter century to expose the phenomenon of wrongful convictions and to implement lasting reforms. In Part II, another set of researchers looks ahead and evaluates what still needs to be done to realize the ideal of a more accurate system.

Law is best interpreted in the context of the traditions and cultures that have shaped its development, implementation, and acceptance. However, these can never be assessed truly objectively: individual interpreters of legal theory need to reflect on how their own experiences create the framework within which they understand legal concepts. Theory is not separate from practice, but one kind of practice. It is rooted in the world, even if it is not grounded by it. In this highly original volume, Allan C. Hutchinson takes up the challenge of self-reflection about how his upbringing, education, and scholarship contributed to his legal insights and analysis. Through this honest examination of key episodes in his own life and work, Hutchinson produces unique interpretations of fundamental legal concepts. This book is required reading for every lawyer or legal scholar who wants to analyse critically where he or she stands when they practice and study law.

Globally, the methodologies of legal education have not changed in any fundamental way, some methods dating back hundreds of years. Law schools have relied, for too long, on passive learning methods such as lectures or cases. Clinical legal education provides an alternative that is more than just another pedagogical method. It provides a way for students to experience their emerging professional selves, while providing services or projects with poor and underrepresented clients. This book documents both the historical origins of clinical experiments in the earliest days of US university legal education, and the now-global reach of clinical pedagogy as a proven tool for effective training of legal professionals.

For centuries, most people believed the criminal justice system worked - that only guilty defendants were convicted. DNA technology shattered that belief. DNA has now freed more than three hundred innocent prisoners in the United States. This book examines the lessons learned from twenty-five years of DNA exonerations and identifies lingering challenges. By studying the dataset of DNA exonerations, we know that precise factors lead to wrongful convictions. These include eyewitness misidentifications, false confessions, dishonest informants, poor defense lawyering, weak forensic evidence, and prosecutorial misconduct. In Part I, scholars discuss the efforts of the Innocence Movement over the past quarter century to expose the phenomenon of wrongful convictions and to implement lasting reforms. In Part II, another set of researchers looks ahead and evaluates what still needs to be done to realize the ideal of a more accurate system.

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding the role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating.

States increasingly cooperate to buy expensive defence equipment, but the management and legal aspects of these large collaborative procurement programmes are complex and not well understood. The Law of Collaborative Defence Procurement in the European Union analyses how these programmes are managed, and highlights areas which require improvement. The book addresses the law applicable to these programmes, which is built upon a four-layer 'matryoshka doll' of legal relationships at the crossroads of public international law, EU law and domestic law. Using practical examples, the book makes proposals for clarifying the legal basis and improving the efficiency of defence equipment cooperation among EU member states. By covering a broad scope of legal issues, this analysis goes beyond the defence sector and is relevant to centralised or joint purchasing and procurement activities of international organisations, providing invaluable information for practitioners, policy-makers and academics aiming to analyse or improve these projects.

In the days of the Roman Empire, the emperor was considered not only the ruler of the state, but also its supreme legal authority, fulfilling the multiple roles of supreme court, legislator, and administrator. The Emperor of Law explores how the emperor came to assume the mantle of a judge, beginning with Augustus, the first emperor, and spanning the years leading up to Caracalla and the Severan dynasty. While earlier studies have attempted to explain this change either through legislation or behaviour, this volume undertakes a novel analysis of the gradual expansion and elaboration of the emperor's adjudication and jurisdiction: by analysing the process through historical narratives, it argues that the emergence of imperial adjudication was a discourse that involved not only the emperors, but also petitioners who sought their rulings, lawyers who aided them, the senatorial elite, and the Roman historians and commentators who described it. Stories of emperors settling lawsuits and demonstrating their power through law, including those depicting 'mad' emperors engaging in violent repressions, played an important part in creating a shared conviction that the emperor was indeed the supreme judge alongside the empirical shift in the legal and political dynamic. Imperial adjudication reflected equally the growth of imperial power during the Principate and the centrality of the emperor in public life, and constitutional legitimation was thus created through the examples of previous actions - examples that historical authors did much to shape. Aimed at readers of classics, Roman law, and ancient history, The Emperor of Law offers a fundamental reinterpretation of the much debated problem of the advent of imperial supremacy in law that illuminates the importance of narrative studies to the field of legal history.