This revised edition of one of the classic works of modern legal philosophy, first published in 1979, represents Raz's landmark 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.

This book offers a philosophical analysis of the moral and legal justifications for the use of force. While the book focuses on the ethics self-defense, it also explores its relation to lesser evil justifications, public authority, the justification of punishment, and the ethics of war. Steinhoff's account of the moral use of force covers a wide range of topics, including the nature of justification in general, the precise elements of different justifications, the logic of claim- and liberty-rights and of rights forfeiture, the value of human life and its limits, and the principles of reciprocity and precaution. While the author's analysis is primarily philosophical, it is informed by a metaethical stance that also places heavy emphasis on existing law and legal scholarship. In doing so, the book appeals to widely shared moral intuitions, precepts, and concepts grounded in criminal law. Self-Defense, Necessity, and Punishment offers the most comprehensive and systematic account of the ethics of self-defense. It will be of interest to scholars and graduate students working in applied ethics and moral philosophy, philosophy of law, and political philosophy.

This book explores developments in international law regarding the relationship between human rights law and international humanitarian law and their coapplicability in armed conflict situations. The work examines the jurisprudence of the international human rights courts and looks at the Inter-American and European Courts of Human Rights case law in dealing with new emergencies in armed conflicts. It argues that a new interpretation and application of the law is required to deal with current needs while remaining faithful to moral commitments made in the international arena. In this way, the book deals with recent cases and their rationale to build a new understanding of law and international policy that complies with the globalization process and progress towards an enhancement of the international community's legal framework. Combining the emergencies in armed conflicts with the mutual enforcement of human rights law and humanitarian law, this book holistically develops concepts and theories to present a pragmatic solution to moral quandaries over the targeting of civilians during armed conflict situations. The book will be a valuable resource for academics, researchers and policy-makers in the areas of international human rights and international humanitarian law.

Brings a distinctive and appropriately provocative stance to a growing debate;

Pluralism proceeds from the observation that many associations in liberal democracies claim to possess, and attempt to exercise, a measure of legitimate authority over their members. They assert that this authority does not derive from the magnanimity of a liberal and tolerant state but is grounded, rather, on the common practices and aspirations of those individuals who choose to take part in a common endeavor. As an account of the authority of associations, pluralism is distinct from other attempts to accommodate groups like multiculturalism, subsidiarity, corporatism, and associational democracy. It is consistent with the explanation of legal authority proposed by contemporary legal positivists, and recommends that the formal normative systems of highly organized groups be accorded the status of fully legal norms when they encounter the laws of the state. In this book, Muniz-Fraticelli argues that political pluralism is a convincing political tradition that makes distinctive and radical claims regarding the sources of political authority and the relationship between associations and the state. Drawing on the intellectual tradition of the British political pluralists, as well as recent developments in legal philosophy and social ontology, the book argues that political pluralism makes distinctive and radical claims regarding the sources of political authority and the relationship between associations and the state.

The book discusses discrimination based on sexual orientation in the jurisprudence of the European Court of Human Rights (ECtHR) and the Constitutional Court of Korea. The work provides insights into how prohibition on discrimination based on sexual orientation can be realized in South Korea with the reference of the case law of other jurisdictions including mainly from the ECtHR. The book reviews related principles and methodological tools applied in the jurisprudence of the ECtHR. Considering that the rights of sexual minorities are evolving in many jurisdictions including Europe, and this problem is currently of great importance in the constitutional and political discussion, the topic is important to the readers in Europe as well as in Korea.

The Case of Speluncean Explorers: Nine New Opinions includes a reprint of Lon Fuller's classic article and a much-needed revision of and addition to the five opening s originally expressed in the case by five Supreme Court Judges

This book presents an ethnography of dispute processing by non-state forums and actors in rural India. As such it sheds light on a much neglected and contested topic. Arising in the context of recent legal and political debates that question the legitimacy of non-state actors engaged in dispute processing, the book explores the nature, form, and functioning of such forums and actors in two locations in rural India. Focusing on a fishermen's community belonging to the caste of Hindu Machimar Kolis in coastal Maharashtra and an agrarian community in Uttarakhand with members from the Pandit, Thakur, Bhotia, and Harijan caste groups, this study shows the manner in which non-state forums and actors engage with state law and its regulatory systems.

This book examines the roles played by narrative and culture in the construction of legal cases and their resolution. It is articulated in two parts. Part I recalls epistemological turns in legal thinking as it moves from theory to practice in order to show how facts are constructed within the legal process. By combining interdisciplinary paradigms and methods, the work analyses the evolution of facts from their expression by the client to their translation within the lawyer-client relationship and the subsequent decision of the judge, focusing on the dynamic activity of narrative construction among the key actors: client, lawyer and judge. Part II expands the scientific framework toward a law-and-culture-oriented perspective, illustrating how legal stories come about in the fabric of the authentic dimensions of everyday life. The book stresses the capacity of laypeople, who in this activity are equated with clients, to shape the law, dealing not just with formal rules, but also with implicit or customary rules, in given contexts. By including the illustration of cases concerning vulnerable clients, it lays the foundations for developing a socio-clinical research programme, whose aims including enabling lay and expert actors to meet for the purposes of improving forms of collective narrations and generating more just legal systems.

Transnational tendencies have led to a pluralistic legal environment in which emerging and established legal actors, regulatory levels and types of legal norms co-exist, compete and interact in complex ways. This challenges and changes not only how legal norms are created, applied and enforced but also when these actors, norms and processes are considered legitimate. The book investigates how states and non-state actors interact in transnational settings and pays attention to the understudied question of what effect transnational tendencies have on the legitimacy of legal actors, norms and processes. It seeks to confront three fundamental questions: Has legitimacy significantly changed? Who creates norms and with which consequences for legal procedures and norms? The book considers the question of legitimacy from a broad range of legal perspectives, including environmental law, human rights law and commercial law. It maps out the contours of legitimacy today with an emphasis on the reactions of central actors like states and courts to transnational tendencies. The book thereby provides a conceptually powerful structure within which to further debate the complexity of transnational tendencies in law and proposes innovative approaches to problem solving while designing pathways for further reflection on the development of law in a transnational context.

Law and Economics is an established field of research and arguably one of the few examples of a successful interdisciplinary project. This book explores whether, or to what extent, that interdisciplinarity has indeed been a success. It provides insights on the foundations and methods, achievements and challenges of Law and Economics, at a time when both the continuing criticism of academic economics and the growth of empirical legal studies raise questions about the identity and possible further developments of the project. Through a combination of reflections on long-term trends and detailed case studies, contributors to this volume analyse the institutional and epistemic character of Law and Economics, which develops through an exchange of concepts, models and practices between economics and legal scholarship. Inspired by insights from the philosophy of the social sciences, the book shows how concepts travel between legal scholarship and economics and change meanings when applied elsewhere, how economic theories and models inform, and transform, judicial practice, and it addresses whether the transfers of knowledge between economics and law are symmetrical exchanges between the two disciplines.

This book brings the insights of theatre theory to law, legal interpretation and the jurisprudential to reshape law as a practice of response and responsibility. Confronting a Baconian antitheatrical legality embedded in its jurisprudences and interpretative practices, Marett Leiboff turns to theatre theory and practice to ground a theatrical jurisprudence, taking its cues from Han-Thies Lehmann's conception of the post-dramatic theatre and the early work of theatre visionary Jerzy Grotowski. She asks law to move beyond an imagined ideal grounded in Aristotelian drama and tragedy, and turns to the formation of the legal interpreter lawyer, judge, jurisprudent as fundamental to understanding what's "noticed" or not noticed in law. We "notice" most easily through that which is written into the body of the legal interpreter, in a way that can't be replicated through law's standard practices of thinking and reasoning. Without more, thinking and reasoning are the epitome of antitheatricality legality; a set of theatrical antonyms, including transgression and instinct, offer instead a set of possibilities through which to reconceive assumptions and foundational concepts etched into the legal imaginary. And by turning to critical dramaturgy, the book reveals that the liveliness that sits behind theatrical jurisprudence isn't a new concept in law at all, but has a long pedigree and lineage that had been lost and hidden. Theatrical jurisprudence, which demands an awareness of self and beyond self, grounds a responsiveness that can't be found within doctrine, principle, or the technocratic, but also challenges us to notice what it is we think we know as well as what we know of lives in law that aren't our own. The book will be of interest to scholars and students in the field of jurisprudence, legal theory, theatre and performance studies, cultural studies and philosophy.

Consent is used in many different social and legal contexts with the pervasive understanding that it is, and has always been, about autonomy - but has it? Beginning with an overview of consent's role in law today, this book investigates the doctrine's inseparable association with personal autonomy and its effect in producing both idealised and demonised forms of personhood and agency. This prompts a search for alternative understandings of consent. Through an exploration of sexual offences in Antiquity, medical practice in the Middle Ages, and the regulation of bodily harm on the present-day sports field, this book demonstrates that, in contrast to its common sense story of autonomy, consent more often operates as an act of submission than as a form of personal freedom or agency. The book explores the implications of this counter-narrative for the law's contemporary uses of consent, arguing that the kind of freedom consent is meant to enact might be foreclosed by the very frame in which we think about autonomy itself. This book will be of interest to scholars of many aspects of law, history, and feminism as well as students of criminal law, bioethics, and political theory.

Originally published in 1968. This is a critical study of the concept of 'rule' featuring in law, ethics and much philosophical analysis which the author uses to investigate the concept of 'rationality'. The author indicates in what manner the modes of reasoning involved in reliance upon rules are unique and in what fashion they provide an alternative both to the modes of logico-mathematical reasoning and to the modes of scientific reasoning. This prepares the groundwork for a methodology meeting the requirements of the fields using rules such as law and ethics which could be significant for communications theory and the use of computers in normative fields. Other substantive issues related to the mainstream of legal philosophy are discussed - theories of interpretation, the notion of purpose and the requirements of principled decision-making. The book utilizes examples drawn from English and American legal decisions to suggest how the positions of legal positivism and of natural law are equally artificial and misleading.

This collection focuses on the particular nexus of popular sovereignty and constitutional change, and the implications of the recent surge in populism for systems where constitutional change is directly decided upon by the people via referendum. It examines different conceptions of sovereignty as expressed in constitutional theory and case law, including an in-depth exploration of the manner in which the concept of popular sovereignty finds expression both in constitutional provisions on referendums and in court decisions concerning referendum processes. While comparative references are made to a number of jurisdictions, the primary focus of the collection is on the experience in Ireland, which has had a lengthy experience of referendums on constitutional change and of legal, political and cultural practices that have emerged in association with these referendums. At a time when populist pressures on constitutional change are to the fore in many countries, this detailed examination of where the Irish experience sits in a comparative context has an important contribution to make to debates in law and political science.

The book was planned and written as a single, sustained argument. But earlier versions of a few parts of it have appeared separately. The object of this book is both to establish the existence of the paradoxes, and also to describe a non-Pascalian concept of probability in terms of which one can analyse the structure of forensic proof without giving rise to such typical signs of theoretical misfit. Neither the complementational principle for negation nor the multiplicative principle for conjunction applies to the central core of any forensic proof in the Anglo-American legal system. There are four parts included in this book. Accordingly, these parts have been written in such a way that they may be read in different orders by different kinds of reader.

This book re-considers property law for a future of environmental disruption. As slogans such as "build the wall" or "stop the boats" affect public policy, there are counter-questions as to whether positivist or statist notions of property are fit for purpose in a time of human mobility and environmental disruption. State-centric property laws construct legal fictions of sovereign control over land, notwithstanding the persistent reality of informal settlements in many parts of the Global South. In a world affected by catastrophic disasters, this book develops a vision of adaptive governance for property in land based on a critical re-assessment of state-centric property law. This book will appeal to a broad readership with interests in legal theory, property law, adaptive governance, international development, refugee studies, postcolonial studies, and natural disasters.

The purpose of this work is to analyze the functioning of extra-legal references (general clauses) in the context of the relation between the legislative policy of opening the legal system and judicial discretion in the field of law interpretation. This publication is based on the analysis of normative acts (in Poland and other selected European countries) and judicial decisions (mainly Polish). The result of the study is an attempt to settle the scope of judicial discretion in determining the content of reference criteria, the basis for their application, and their role in various stages of the process of judicial interpretation of the law. The book concludes with an attempt to construct a comparative and an optimization model of the functioning of general clauses in the legal order.

Disgorgement of profits is not exactly a household word in private law. Particularly in civil law jurisdictions - as opposed to those of the common law - the notion is not well known. What does it stand for? It is best illustrated by examples. One of the best known being the British case of Blake v Attorney General, [2001] 1 AC 268. In which a double spy had been imprisoned by the UK government before escaping and settling in the former Soviet Union. While there wrote a book on his experiences, upon which the UK government claimed the proceeds of the book. The House of Lords, as it then was, allowed the claim on the basis of Blake's breach of his employment contract. Other examples are the infringement of intellectual property rights, where the damages of the owner are limited, but the profits of the wrongdoer immense. In such cases, the question arises whether the infringing party should be disgorged of his profits. This volume aims at establishing the notion of disgorgement of profits as a keyword in the discourse of private law. It does not purport to answer the question whether or not such damages should or should not be awarded. It does however aim to contribute to the discussion, the arguments in favour and against, and the organisation of the various actions.

This volume examines the lives of more than thirty-five key personalities in Latin American law with a focus on how their Christian faith was a factor in molding the evolution of law in their countries and the region. The book is a significant contribution to our ability to understand the work and perspectives of jurists and their effect on legal development in Latin America. The individuals selected for study exhibit wide-ranging areas of expertise from private law and codification, through national public law and constitutional law, to international developments that left their mark on the region and the world. The chapters discuss the jurists within their historical, intellectual, and political context. The editors selected jurists after extensive consultation with legal historians in various countries of the region looking at the jurist's particular merits, contributions to law in general, religious perspective, and importance within the specific country and period under consideration. Giving the work a diversity of international and methodological perspectives, the chapters have been written by distinguished legal scholars and historians from Latin America and around the world. The collection will appeal to scholars, lawyers, and students interested in the interplay between law and religion. Political, social, legal, and religious historians among other readers will find, for the first time in English, authoritative treatments of the region's essential legal thinkers and authors. Students and other who may not read Spanish will appreciate these clear, accessible, and engaging English studies of the region's great jurists.

This book explores the extent of parallelism and cross-influence between Catholic Social Teaching and the work of the world's oldest human rights institution, the International Labour Organisation (ILO). Sometimes there is a mutual attraction between seeming opposites who in fact share a common goal. This book is about just such an attraction between a secular organisation born of the political desire for peace and justice, and a metaphysical institution much older founded to bring peace and justice on earth. It examines the principles evident in the teachings of the Catholic Church and in the secular philosophy of the ILO; together with the theological basis of the relevant provisions of Catholic Social Teaching and of the socio-political origins and basis of the ILO. The spectrum of labour rights covered in the book extends from the right to press for rights, i.e., collective bargaining, to rights themselves - conditions in work - and on to post-employment rights in the form of social security and pensions. The extent of the parallelism and cross-influence is reviewed from the issue of the Papal Encyclical of Pope Leo XIII Rerum Novarum (1891) and from the founding of the ILO in 1919. This book is intended to appeal to lay, professional and academic alike, and will be of interest to researchers and academics working in the areas of international human rights, theology, comparative philosophy, history and social and political studies. On 4 January 2021 it was granted an Imprimatur by the Roman Catholic Archbishop of Liverpool, Malcolm P. McMahon O.P., meaning that the Catholic Church is satisfied that the book is free of doctrinal or moral error.

Xiang explains the nature and depth of the legitimacy crisis facing the government of China, and why it is so frequently misunderstood in the West. Arguing that it is more helpful to understand the quest for legitimacy in China as an eternally dynamic process, rather than to seek resolutions in constitutionalism, Xiang examines the understanding of legitimacy in Chinese political philosophy. He posits that the current crisis is a consequence of the incompatibility of Confucian Republicanism and Soviet-inspired Bolshevism. The discourse on Chinese political reform tends to polarize, between total westernization on the one hand, or the rejection of western influence in all forms on the other. Xiang points to a third solution - meeting western democratic theories halfway, avoiding another round of violent revolution. This book provides valuable insights for scholars and students of China's politics and political history.

Legal scholars and authorities generally agree that the law should be obeyed and should apply equally to all those subject to it, without favour or discrimination. Yet it is possible to see that in any legal system there will be situations when strict application of the law will produce undesirable results, such as injustice or other consequences not intended by the law as framed. In such circumstances the law may be changed but there may be broad policy reasons not to do so. The allied concepts of dispensation and economy grew up in the western and eastern traditions of the Christian church as mechanisms whereby an individual or a class of people could, by authority, be excused from obligations under a particular law in particular circumstances without that law being changed. This book uncovers and explores this neglected area of church life and law. Will Adam argues that dispensing power and authority exist in various guises in the systems of different churches. Codified and understood in Roman Catholic and Orthodox canon law, this arouses suspicion in the Church of England and in English law in general. The book demonstrates that legal flexibility can be found in English law and is integral to the law of the Church, to enable the Church today better to fulfil its mission in the world.

This book draws upon domestication science to undertake a radical reappraisal of the jurisprudence of property and intellectual property.

Mark Platts is responsible for the first systematic presentation of truth-conditional semantics and for turning a generation of philosophers on to the Davidsonian program. He is also a pioneer in discussions of moral realism, and has made important contributions to bioethics, the philosophy of human rights and moral responsibility. This book is a tribute to Platts's pioneering work in these areas, featuring contributions from number of leading scholars of his work from the US, UK and Mexico. It features replies to the individual essays from Platts, as well as a concluding chapter reflecting on his philosophical career from Oxford to Mexico City. Mind, Language and Morality will be of interest to philosophers across a wide range of areas, including ethics, moral psychology, philosophy of law, and philosophy of language.