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

This collection of essays explores the different ways the insights from complexity theory can be applied to law. Complexity theory - a variant of systems theory - views law as an emergent, complex, self-organising system comprised of an interactive network of actors and systems that operate with no overall guiding hand, giving rise to complex, collective behaviour in law communications and actions. Addressing such issues as the unpredictability of legal systems, the ability of legal systems to adapt to changes in society, the importance of context, and the nature of law, the essays look to the implications of a complexity theory analysis for the study of public policy and administrative law, international law and human rights, regulatory practices in business and finance, and the practice of law and legal ethics. These are areas where law, which craves certainty, encounters unending, irresolvable complexity. This collection shows the many ways complexity theory thinking can reshape and clarify our understanding of the various problems relating to the theory and practice of law.

Oriented around the theme of a 'politics of philosophy', this book tracks the phases in which Foucault's genealogy of power, law, and subjectivity was reorganized during the 14 years of his teaching at the College de France, as his focus shifted from sovereignty to governance. This theme, Sandro Chignola argues here, is the key to understanding four features of Foucault's work over this period. First, it foregrounds its immediate political character. Second, it demonstrates that Foucault's "Greek trip" also aims at a politics of the subject that is able to face the processes of the governmentalization of power. Third, it makes clear that the idea of the "government of the self" is - drawing on an ethics of intellectual responsibility that is Weberian in origin - an answer to the processes that, within neoliberal governance, produce the subject as an individual (as a consumer, a market agent, an entrepreneur, and so on). Fourth, the theme of a 'politics of philosophy' implies that Foucault's research was never simply scholarly or neutral; but rather was characterized by a specific political position. Against recent interpretations that risk turning Foucault into a scholar, here then Foucault is re-presented as a key figure for jurisprudential and political-philosophical research.

American criminal justice is a dysfunctional mess. Cops are too violent, the punishments are too punitive, and the so-called Land of the Free imprisons more people than any other country in the world. Understanding why means focusing on color-not only on black or white (which already has been studied extensively), but also on green. The problem is that nearly everyone involved in criminal justice-including district attorneys, elected judges, the police, voters, and politicians-faces bad incentives. Local towns often would rather send people to prison on someone else's dime than pay for more effective policing themselves. Local police forces can enrich themselves by turning into warrior cops who steal from innocent civilians. Voters have very little incentive to understand the basic facts about crime or how to fix it-and vote accordingly. And politicians have every incentive to cater to voters' worst biases. Injustice for All systematically diagnoses why and where American criminal justice goes wrong, and offers functional proposals for reform. By changing who pays for what, how people are appointed, how people are punished, and which things are criminalized, we can make the US a country which guarantees justice for all. Key Features: Shows how bad incentives, not "bad apples," cause the dysfunction in American criminal justice Focuses not only on overincarceration, but on overcriminalization and other failures of the criminal justice system Provides a philosophical and practical defense of reducing the scope of what's considered criminal activity Crosses ideological lines, highlighting both the weaknesses and strengths of liberal, conservative, and libertarian agendas Fully integrates tools from philosophy and social science, making this stand out from the many philosophy books on punishment, on the one hand, and the solely empirical studies from sociology and criminal science, on the other Avoids disciplinary jargon, broadening the book's suitability for students and researchers in many different fields and for an interested general readership Offers plausible reforms that realign specific incentives with the public good.

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 book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.

Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law 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, Law, Person, and Community 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. Professor John J. Coughlin 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.

Margaret Gilbert offers an incisive new approach to a classic problem of political philosophy: when and why should I do what the laws of my country tell me to do? Beginning with carefully argued accounts of social groups in general and political societies in particular, the author argues that in central, standard senses of the relevant terms membership in a political society in and of itself obligates one to support that society's political institutions. The obligations in question are not moral requirements derived from general moral principles, as is often supposed, but a matter of one's participation in a special kind of commitment: joint commitment. An agreement is sufficient but not necessary to generate such a commitment. Gilbert uses the phrase 'plural subject' to refer to all of those who are jointly committed in some way. She therefore labels the theory offered in this book the plural subject theory of political obligation. The author concentrates on the exposition of this theory, carefully explaining how and in what sense joint commitments obligate. She also explores a classic theory of political obligation -- actual contract theory -- according to which one is obligated to conform to the laws of one's country because one agreed to do so. She offers a new interpretation of this theory in light of a theory of plural subject theory of agreements. She argues that actual contract theory has more merit than has been thought, though the more general plural subject theory is to be preferred. She compares and contrasts plural subject theory with identification theory, relationship theory, and the theory of fair play. She brings it to bear on some classic situations of crisis, and, in the concluding chapter, suggests a number of avenues for related empirical and moral inquiry. Clearly and compellingly written, A Theory of Political Obligation will be essential reading for political philosophers and theorists.

The central question in legal philosophy is the relationship between law and morality. The legal systems of many countries around the world have been influenced by the principles of the Enlightenment: freedom, equality and fraternity. The position is similar in relation to the accompanying state ideal of the democratic constitutional state as well as the notion of a welfare state. The foundation of these principles lies in the ideal of individual autonomy. The law must in this view guarantee a social order which secures the equal freedom of all. This freedom is moreover fundamental because in modern pluralistic societies a great diversity of views exist concerning the appropriate way of life. This freedom ideal is however also strongly contested. In Law, Order and Freedom, a historical overview is given pertaining to the question of the extent to which the modern Enlightenment values can serve as the universal foundation of law and society.

During the 20th century many countries embarked on a process of constitutional secularization by which the role of religion gradually became limited. Yet, by the late 20th century, and increasingly following the end of the Cold War, this development began to be challenged. This book examines the return of religion in constitutions through the concept of constitutional de-secularization. It places this phenomenon in the context of the constitutional memory of the countries in which it has taken place and critically examines it against the development and standards of constitutionalism, as the prevailing constitutional legal and political theory. Central to this analysis is the impact of constitutional de-secularization on the regulation of equality in liberty, that is, both the regulation of constitutional rights and the scope for equality of those who are granted such rights. The book argues that equal liberty forms an essential part of constitutionalism as a theory, and that constitutionalism therefore entails a continuous development towards expanding it. The first and second part of the book presents a conceptual framework for the study of constitutional de-secularization. The third part presents and analyses three cases of constitutional de-secularization in Afghanistan, Iran and Iraq. The book will be of interest to researchers and policy-makers interested in constitutional history and theory, and the role of religion in law and its compatibility with human rights.

Anthropocene Antarctica offers new ways of thinking about the 'Continent for Science and Peace' in a time of planetary environmental change. In the Anthropocene, Antarctica has become central to the Earth's future. Ice cores taken from its interior reveal the deep environmental history of the planet and warming ocean currents are ominously destabilising the glaciers around its edges, presaging sea-level rise in decades and centuries to come. At the same time, proliferating research stations and tourist numbers challenge stereotypes of the continent as the 'last wilderness.' The Anthropocene brings Antarctica nearer in thought, entangled with our everyday actions. If the Anthropocene signals the end of the idea of Nature as separate from humans, then the Antarctic, long considered the material embodiment of this idea, faces a radical reframing. Understanding the southern polar region in the twenty-first century requires contributions across the disciplinary spectrum. This collection paves the way for researchers in the Environmental Humanities, Law and Social Sciences to engage critically with the Antarctic, fostering a community of scholars who can act with natural scientists to address the globally significant environmental issues that face this vitally important part of the planet.

American criminal justice is a dysfunctional mess. Cops are too violent, the punishments are too punitive, and the so-called Land of the Free imprisons more people than any other country in the world. Understanding why means focusing on color-not only on black or white (which already has been studied extensively), but also on green. The problem is that nearly everyone involved in criminal justice-including district attorneys, elected judges, the police, voters, and politicians-faces bad incentives. Local towns often would rather send people to prison on someone else's dime than pay for more effective policing themselves. Local police forces can enrich themselves by turning into warrior cops who steal from innocent civilians. Voters have very little incentive to understand the basic facts about crime or how to fix it-and vote accordingly. And politicians have every incentive to cater to voters' worst biases. Injustice for All systematically diagnoses why and where American criminal justice goes wrong, and offers functional proposals for reform. By changing who pays for what, how people are appointed, how people are punished, and which things are criminalized, we can make the US a country which guarantees justice for all. Key Features: Shows how bad incentives, not "bad apples," cause the dysfunction in American criminal justice Focuses not only on overincarceration, but on overcriminalization and other failures of the criminal justice system Provides a philosophical and practical defense of reducing the scope of what's considered criminal activity Crosses ideological lines, highlighting both the weaknesses and strengths of liberal, conservative, and libertarian agendas Fully integrates tools from philosophy and social science, making this stand out from the many philosophy books on punishment, on the one hand, and the solely empirical studies from sociology and criminal science, on the other Avoids disciplinary jargon, broadening the book's suitability for students and researchers in many different fields and for an interested general readership Offers plausible reforms that realign specific incentives with the public good.

The late Jim Harris' theory of the science of law, and his theoretical work on human rights and property, have been a challenge and stimulus to legal scholars for the past twenty-five years. This collection of essays, originally conceived as a festschrift and now offered to the memory of a greatly admired scholar, assesses Harris' contribution across many fields of law and legal philosophy. The chapters are written by some of the foremost specialists writing today, and reflect the wide range of Harris's work, and the depth of his influence on legal studies. They include contributions on topics as diverse as the nature of law and legal reasoning, rival theories of property rights and their impact on practical questions before the courts; the nature of precedent in legal argument; and the evolving concept of human rights and its place in legal discourse. With a foreword by the Honourable Justice Edwin Cameron, this volume celebrates the life and work of Jim Harris

This volume purports to explore the legal and political issues triggered by the new wave of secessionism. More specifically, those issues concern the interplay between notions of democracy (and democratic ends and means) and law (and the rule of law and constitutionalism). Against this background, the editors use amorality in order to escape the terrain of the justification of secession by making a distinction between the democratic theory of secession and the theory of democratic secession. In the first section, the theoretical nexus democracy-secession has been approached both from a legal and political theory perspective. The second section of the book examines the instruments that the theory of democratic secession invokes in order to justify secession and presents both legal and political science contributions. The third section focuses on social movements and political actors. The fourth section focuses on two case studies due to the awareness of the importance of the difference between secession in a democratic occidental context (which call into play the discussion of the democratic theories) and separations in a non-democratic context (where the nexus between secession and democracy is not really central).

Torts and other Wrongs is a collection of eleven of the author's essays on the theory of the law of torts and its place in the law more generally. Two new essays accompany nine previously published pieces, a number of which are already established classics of theoretical writing on private law. Together they range across the distinction between torts and other wrongs, the moral significance of outcomes, the nature and role of corrective and distributive justice, the justification of strict liability, the nature of the reasonable person standard, and the role of public policy in tort adjudication. Though focussed on the law of torts, the wide-ranging analysis in each chapter will speak to theorists of private law more generally.

This book addresses how the erosion of traditional forms of political association and legal regulation has given rise to a pluralism of "imperfect communities" constantly exposed to the risk of dissolution. These are niches and micro-worlds that are connected through precarious and ambivalent ties. Such a far-reaching transformation affects at one and the same time both our psychic and social identity. The book argues that this phenomenon is linked to the proliferation of new forms of psychic "disorder" - depression, personality disorder, dissociation - typical of hypermodern societies. However, while these can easily turn into genuine disorders, they can also open onto richer forms of identity, more complex than those of the past. Based on this analysis, the book's main claim is that this dynamic epitomizes a general anthropological paradox - one that has always marked the human animal: humans are bound by their own biological constitution to fend off disorder by drawing the boundaries of artificial niches, and yet they are inclined to expose themselves to unlimited contingency so that they can find a truly suitable environment. Pursuing a novel understanding of the apparent collapse of traditional juridico-political settings, this book makes the case that the emergence of dissociations at several levels - individual, social, political, legal - does not stem from a lack of political imagination. Rather, it is a situation with which humans are inevitably confronted: a perennial tension between the limited and the unlimited, between the desire to take refuge and the desire to cross borders.

This volume examines the relationship between law and sacrifice as a crucial nexus for theorizing the dynamics of creation, destruction, transcendence, and violence within the philosophical and legal discourse of western society. At a time of populist political unrest, what philosophical and theoretical resources are available for conceptualizing the discontent that seems to emanate from practically every sphere of society? What narrative strategies have been employed within literary, theological, philosophical, and legal discourse to tame or mystify human violence? Engaging with the work of preeminent theorists of sacrifice, such as Georges Bataille, Rene Girard, Giorgio Agamben, and Jacques Derrida this collection examines from an interdisciplinary perspective the sacrificial logic that characterizes the cultural and political dynamics of law in society. The book will be of interest to students and scholars in the field of legal theory and philosophy.

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 aims to augment the Ashgate series by taking stock of the current state of migration law literature. It also aims to sketch out the contours of its future long-term development, in what is now by all accounts a vastly expanded research agenda.

Institutions of Law offers an original account of the nature of law and legal systems in the contemporary world. It provides the definitive statement of Sir Neil MacCormick's well-known 'institutional theory of law', defining law as 'institutional normative order' and explaining each of these three terms in depth. It attempts to fulfil the need for a twenty-first century introduction to legal theory marking a fresh start such as was achieved in the last century by H. L. A. Hart's The Concept of Law. It is written with a view to elucidating law, legal concepts and legal institutions in a manner that takes account of current scholarly controversies but does not get bogged down in them. It shows how law relates to the state and civil society, establishing the conditions of social peace and a functioning economy. In so doing, it takes account of recent developments in the sociology of law, particularly 'system theory'. It also seeks to clarify the nature of claims to 'knowledge of law' and thus indicate the possibility of legal studies having a genuinely 'scientific' character. It shows that there is an essential value-orientation of all work of this kind, so that valid analytical jurisprudence not merely need not, but cannot, be 'positivist' as that term has come to be understood. Nevertheless it is explained why law and morality are genuinely distinct by virtue of the positive character of law contrasted with the autonomy that is foundational for morality.

A renowned Harvard professor's brilliant, sweeping, inspiring account of the role of justice in our society--and of the moral dilemmas we face as citizens.

In his acclaimed book―based on his legendary Harvard course―Sandel offers a rare education in thinking through the complicated issues and controversies we face in public life today. It has emerged as a most lucid and engaging guide for those who yearn for a more robust and thoughtful public discourse. "In terms we can all understand," wrote Jonathan Rauch in The New York Times, Justice "confronts us with the concepts that lurk . . . beneath our conflicts."

Affirmative action, same-sex marriage, physician-assisted suicide, abortion, national service, the moral limits of markets―Sandel relates the big questions of political philosophy to the most vexing issues of the day, and shows how a surer grasp of philosophy can help us make sense of politics, morality, and our own convictions as well.

Justice is lively, thought-provoking, and wise―an essential new addition to the small shelf of books that speak convincingly to the hard questions of our civic life.

Although our moral lives would be unrecognisable without them, roles have received little attention from analytic moral philosophers. Roles are central to our lives and to our engagement with one another, and should be analysed in connection with our core notions of ethics such as virtue, reason, and obligation. This volume aims to redress the neglect of role ethics by confronting the tensions between conceptions of impartial morality and role obligations in the history of analytic philosophy and the Confucian tradition. Different perspectives on the ethical significance of roles can be found by looking to debates within professional and applied ethics, by challenging existing accounts of how roles generate reasons, by questioning the hegemony of ethical reasons, and by exploring the relation between expertise and virtue. The essays tackle several core questions related to these debates: What are roles and what is their normative import? To what extent are roles and the ethics of roles central to ethics as opposed to virtue in general, and obligation in general? Are role obligations characteristically incompatible with ordinary morality in professions such as business, law, and medicine? How does practical reason function in relation to roles? Perspectives in Role Ethics is an examination of a largely neglected topic in ethics. It will appeal to a broad range of scholars in normative ethics, virtue ethics, non-Western ethics, and applied ethics interested in the importance of roles in our moral life.

There exists a genuine degree of scepticism as to whether Hans Kelsen's pure theory of law can rationalise the intricacies of the English legal system. This groundbreaking book examines pertinent aspects of English law relating to constitutional patterns of law-making, the relationship between law and policy, and the ultimate efficacy of the legal order, through the pure theory's prism. This insightful book demonstrates that Kelsen's theory is highly suitable to examine some of these issues, and in some aspects of English law it actually possesses the analytical cutting edge. Beginning with an overview of the outlook and methodology of the pure theory of law and placing it within the broader focus of positive scholarship, Orakhelashvili moves on to offer a description of the relationship between methods of the legal theory and the workings of a legal system, along with assessments of the relationship between law and policy in legal theory and in judicial practice, and of criticisms of the pure theory. Thoughtful and perceptive, this book will be valuable reading for legal scholars, social scientists, judges, practicing lawyers, legal historians, political scientists, and law students.

This book is the first to approach Jacques Ranciere's work from a legal perspective. A former student of Louis Althusser, Ranciere is one of the most important contemporary French philosophers of recent decades: offering an original and path-breaking way to think politics, democracy and aesthetics. Ranciere's work has received wide and increasing critical attention, but no study exists so far that reflects on the wider implications of Ranciere for law and for socio-legal studies. Although Ranciere does not pay much specific attention to law-and there is a strong temptation to identify law with what he terms the "police order"-much of Ranciere's historical work highlights the creative potential of law and legal language, with important legal implications and ramifications. So, rather than excavate the Rancierean corpus for isolated statements about the law, this volume reverses such a method and asks: what would a Ranciere-inspired legal theory look like? Bringing together specialists and scholars in different areas of law, critical theory and philosophy, this rethinking of law and socio-legal studies through Ranciere provides an original and important engagement with a range of contemporary legal topics, including constituent power and democracy, legal subjectivity, human rights, practices of adjudication, refugees, the nomos of modernity, and the sensory configurations of law. It will, then, be of considerable interest to those working in these areas.

This title was first published in 2000: While there are many philosophical studies of free speech, treating censorship historically, politically, or by the medium restricted (films, press etc.), little has been written on censorship and free speech dealing with issues philosophically and approaching them from the perspective of restrictions. This book treats censorship and free speech as a problem of ideas, examining the issues as an aspect of our wider social and political lives and critically examining mainstream arguments against censorship. This unique approach takes issue with the concept of censorship as something aberrant, to examine where the limits of free speech lie in ensuring individual development and collective harmony. Examining the possibility of accepting censorship positively to serve legitimate purposes, it will be a thought-provoking challenge to prescriptive arguments for free speech.