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.

Ronald Dworkin occupies a distinctive place in both public life and philosophy. In public life, he is a regular contributor to The New York Review of Books and other widely read journals. In philosophy, he has written important and influential works on many of the most prominent issues in legal and political philosophy. In both cases, his interventions have in part shaped the debates he joined. His opposition to Robert Bork's nomination for the United States Supreme Court gave new centrality to debates about the public role of judges and the role of original intent in constitutional interpretation. His writings in legal philosophy have reoriented the modern debate about legal positivism and natural law. In political philosophy, he has shaped the ways in which people debate the nature of equality and has reframed debates about the sanctity of 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.

There is something visceral about ownership. This is mine; you can't have it. This is mine; you can share it. This is ours. Try to find it. Contemporary literature and investigative journalism are showing that the scale of the problem of tax evasion, money laundering, organised crime, terrorism, bribery, corruption and gross human rights abuses is vast. Ownership - specifically, the quest to identify beneficial owners - has been chosen by national and international regulators as the touchstone, the litmus test in the fight back. An owner by definition must possess something for which they are financially accountable. But what is meant by "ownership"? This book explains why ownership is pivotal to accountability, and what ownership means in common law, civil law and Shariah law terms. It looks in detail at State, regional and international transparency strategies and at an equally powerful global private counter-initiative to promote beneficial ownership avoidance through the use of so-called "orphan structures". Where there is no owner, there is no accountability. The distinction between privacy and legitimate confidentiality on the one hand, and concealment on the other is explained with reference to commercial and trade law and practice, principles of corporate governance and applicable business human rights. This book introduces one further counter initiative: the phenomenon of transient ownership made possible through the use of cryptocurrency and the blockchain. The study concludes with a blueprint for action with recommendations addressed to states, international organisations, practitioners and other stakeholders.

Moshe Simon-Shoshan offers a groundbreaking study of Jewish law (halakhah) and rabbinic story-telling. Focusing on the Mishnah, the foundational text of halakhah, he argues that narrative was essential in early rabbinic formulations and concepts of law, legal process, and political and religious authority. Simon-Shoshan first sets out a theoretical framework for considering the role of narrative in the Mishnah. Drawing on a wide range of disciplines, including narrative theory, Semitic linguistics, and comparative legal studies, he argues that law and narrative are inextricably intertwined in the Mishnah. Narrative is central to the way in which the Mishnah transmits law and ideas about jurisprudence. Furthermore, the Mishnah's stories are the locus around which the authority of the rabbis as supreme arbiters of Jewish law is both constructed and critiqued. In the second half of the book, Simon-Shoshan applies these ideas to close readings of individual Mishnaic stories. Among these stories are some of the most famous narratives in rabbinic literature, including those of Honi the Circle-drawer and R. Gamliel's Yom Kippur confrontation with R. Joshua. In each instance, Simon-Shoshan elucidates the legal, political, theological, and human elements of the story and places them in the wider context of the book's arguments about law, narrative, and rabbinic authority. Stories of the Law presents an original and forceful argument for applying literary theory to legal texts, challenging the traditional distinctions between law and literature that underlie much contemporary scholarship.

The revised edition of The Ontological Foundation of Ethics, Politics, and Law adds new concepts and discusses the views of additional thinkers. The author refers to his basic ontological conception of the human "mind" or "spirit" as an evolving, conscious, triadic entity composed of intellect, sensitivity, and power, each exerting a bidirectional (selfish and moral) activity. Through this approach, the notions of good, morality, society, and law are derived from the structure and functioning of the mind. It follows that the solutions presented are the results of a discovery and not the consequence of a choice. Otherwise stated, ethics, politics, and law are given an ontological foundation. For each topic considered, Belfiore shows how his thought can reinterpret the views of other philosophers. This new edition, enriched in concepts and quotations, appears as an innovative and highly stimulating contribution to the philosophical branches of ethics, politics, and law, and will be of interest to both graduate students and philosophy scholars.

The Cambridge Companion to the Rule of Law introduces students, scholars, and practitioners to the theory and history of the rule of law, one of the most frequently invoked-and least understood-ideas of legal and political thought and policy practice. It offers a comprehensive re-assessment by leading scholars of one of the world's most cherished traditions. This high-profile collection provides the first global and interdisciplinary account of the histories, moralities, pathologies and trajectories of the rule of law. Unique in conception, and critical in its approach, it evaluates, breaks down, and subverts conventional wisdom about the rule of law for the twenty-first century.

Originally published: Berkeley: University of California Press, 1957. vi], 397 pp. Through the lens of science, Hans Kelsen proposes a dynamic theory of natural law, examines Platonic and Aristotelian doctrines of justice and the idea of justice as found in the holy scriptures. "You simply cannot get around this book if you want a real understanding of the fundamental ideas on which the great work of Kelsen is built. Reading this volume you may once more admire the transparent clarity of style and the merciless consistency of reasoning which are well known qualities of this author." -- Alf Ross, 45 California Law Review 564 1957. Possibly the most influential jurisprudent of the twentieth century, Hans Kelsen 1881-1973] was legal adviser to Austria's last emperor and its first republican government, the founder and permanent advisor of the Supreme Constitutional Court of Austria, and the author of Austria's Constitution, which was enacted in 1920, abolished during the Anschluss, and restored in 1945. He was the author of more than forty books on law and legal philosophy. Active as a teacher in Europe and the United States, he was Dean of the Law Faculty of the University of Vienna and taught at the universities of Cologne and Prague, the Institute of International Studies in Geneva, Harvard, Wellesley, the University of California at Berkeley, and the Naval War College.

Ownership and Inheritance in Sanskrit Jurisprudence provides an account of various theories of ownership (svatva) and inheritance (daya) in Sanskrit jurisprudential literature (Dharmasastra). It examines the evolution of different juridical models of inheritance-in which families held property in trusts or in tenancies-in-common-against the backdrop of related developments in the philosophical understanding of ownership in the Sanskrit text-traditions of hermeneutics (Mimamsa) and logic (Nyaya) respectively. Christopher T. Fleming reconstructs medieval Sanskrit theories of property and traces the emergence of various competing schools of Sanskrit jurisprudence during the early modern period (roughly fifteenth-nineteenth centuries) in Bihar, Bengal, and Varanasi. Fleming attends to the ways in which ideas from these schools of jurisprudence shaped the codification of Anglo-Hindu personal law by administrators of the British East India Company during the late eighteenth and early nineteenth centuries. While acknowledging the limitations of colonial conceptions of Dharmasastra as positive law, this study argues for far greater continuity between pre-colonial and colonial Sanskrit jurisprudence than accepted previously. It charts the transformation of the Hindu law of inheritance-through precedent and statute-over the late nineteenth, twentieth, and early twenty-first centuries.

Are we able to do everything we ought to do? According to the important but controversial Ought Implies Can principle, the answer is yes. In this book Alex King sheds some much-needed light on this principle. She argues that it is flawed because we are obligated to perform some actions that we cannot perform, and goes on to present a suggested theory for anyone who would deny the principle. She examines the traditional motivations for Ought Implies Can, and finds that they to a large degree do not support it. Using examples like gay rights, addiction, and disability, she argues that we can preserve many of the motivations that led us to the principle by thinking more about what we, as individuals or institutions, can fairly demand of ourselves and each other.

John Locke is one of the most important figures in the history of philosophy. His Two Treatises of Government and A Letter Concerning Toleration fascinate us as much today as they did when first published three centuries ago. Locke and Law presents for the first time in one collection the most important contemporary writings exploring his many contributions to legal theory. These articles and essays deal with a variety of issues, such as natural law, natural rights, property, abortion, constitutional law, the relationship between law and society, punishment, toleration, and civil disobedience.

St. Augustine and Roman law are the two bridges from Athens and Jerusalem to the world of modern law. Augustine's almost eerily modern political realism was based upon his deep appreciation of human evil, arising from his insights into the human personality, the product of his reflections on his own life and the history of his times. These insights have traveled well through the ages and are mirrored in the pages of Aquinas, Luther and Calvin, Reinhold Niebuhr, and Hannah Arendt. The articles in this volume describe the life and world of Augustine and the ways in which he conceived both justice and law. They also discuss the little recognized Augustinian contributions to the field of modern hermeneutics - the discipline which informs the art of legal interpretation. Finally, they include Augustine's valuable discussion of church/state relations, the law of just wars, and proper role and limits of coercion, and the procreative dimensions of marriage. The volume also includes an extremely useful, definitive bibliography of Augustine and the law, and will leave readers with an increased appreciation of the contributions which Augustine has made to the history of jurisprudence. No one can read Augustine and these articles on his view of the law without taking away a new view of the law itself.

Advances in the field of Assisted Reproductive Technology (ART) have been revolutionary. This book focuses on the use of ARTs in the context of families who seek to conceive a matching sibling donor as a source of tissue to treat an existing sick child. Such children have been referred to as 'saviour siblings'. Considering the legal and regulatory frameworks that impact on the accessibility of this technology in Australia and the UK, the work analyses the ethical and moral issues that arise from the use of the technology for this specific purpose. The author claims the only justification for limiting a family's reproductive liberty in this context is where the exercise of reproductive decision-making results in harm to others. It is argued that the harm principle is the underlying feature of legislative action in Western democratic society, and as such, this principle provides the grounds upon which a strong and persuasive argument is made for a less-restrictive regulatory approach in the context of 'saviour siblings'. The book will be of great relevance and interest to academics, researchers, practitioners and policy makers in the fields of law, ethics, philosophy, science and medicine.

The study of the ethical issues related to computer use developed primarily in the 1980s, although a number of important papers were published in previous decades, many of which are contained in this volume. Computer ethics, as the field became known, flourished in the following decades. The emphasis initially was more on the computing profession: on questions related to the development of systems, the behaviour of computing professionals and so on. Later the focus moved to the Internet and to users of computer and related communication technologies. This book reflects these different emphases and has articles on most of the important issues, organised into sections on the history and nature of computer ethics, cyberspace, values and technology, responsibility and professionalism, privacy and surveillance, what computers should not do and morality and machines.

In this important collection of papers, Dennis Patterson continues to show the importance of Wittgenstein's thought for problems in legal theory. Ranging across issues in the philosophy of mind to questions of meaning and normativity, this collection of papers is essential reading for anyone with an interest in legal theory.

If catastrophes are, by definition, exceptional events of such magnitude that worlds and lives are dramatically overturned, the question of timing would pose a seemingly straightforward, if not redundant question. The Time of Catastrophe demonstrates the analytic productiveness of this question, arguing that there is much to be gained by interrogating the temporal conceits of conventional understandings of catastrophe and the catastrophic. Bringing together a distinguished, interdisciplinary group of scholars, the book develops a critical language for examining 'catastrophic time', recognizing the central importance of, and offering a set of frameworks for, examining the alluring and elusive qualities of catastrophe. Framed around the ideas of Agamben, Kant and Benjamin, and drawing on philosophy, history, law, political science, anthropology and the arts, this volume seeks to demonstrate how the question of 'catastrophic time' is in fact a question about something much more than the frequency of disasters in our so-called 'Age of Catastrophe'.

The criminal courts have the power to stop a prosecution from proceeding altogether where it would be inappropriate for it to continue. This power to stay proceedings which constitute an abuse of the process of the court has assumed great practical significance and is potentially applicable in many situations. There is at least one consideration of the abuse of process doctrine in virtually every major criminal trial today.
This fully updated second edition of Abuse of Process and Judicial Stays of Criminal Proceedings blends doctrinal discussion with a thorough consideration of the underlying theory to provide a searching analysis of the theory and practice of abuse of process in England and Wales, with comparative examinations of many other jurisdictions including The USA, Canada, Australia, and New Zealand. This edition focuses in particular upon the profound impact of the European Convention on Human Rights in this area.

The Politics of Juridification offers a timely contribution to debates about how politics is being affected by the increasing relevance of judicial bodies to the daily administration of Western political communities. While most critical analyses portray juridification as a depoliticizing, de-democratizing transferral of political authority to the courts (whether national or international), this book centres on the workable ambivalence of such a far-reaching phenomenon. While juridification certainly intensifies the power and competences of judicial bodies to the disadvantage of representative political institutions, it cannot be easily reduced to the demise of democratic politics. By focusing on the multiple ways in which social agents make use of the law, The Politics of Juridification teases out the agential and transformative aspects of the various negotiations social agents engage with legal institutions with a view to obtaining political visibility. In particular, the book homes in on two seemingly distinct phenomena: on one hand, the regulation of sexuality and emerging kinship formations; on the other, the fragmentation of legal settings due to the claims to legal autonomy advanced by sub-state cultural and religious groups. By doing so, the book makes the case for an unexpected convergence between the struggles for legal recognition of sexual minorities and religious and cultural minorities. The conclusion is that juridification does entail normalization and favour the infiltration of law into the social realm. But because of its ambivalent nature, it can and does serve as an alternative vehicle for social change - one that attaches more importance to how social agents produce law on a daily basis and how this law permeates official legal orders.

Evils, both large and small, are a constant feature of human life. This book is about responding to them and in particular about responding to moral evils, that is, those produced by the deliberate acts of human beings. Prominent in our repertoire of responses to moral evil are forgiveness and punishment, and these, with the numerous conceptual and moral problems they raise, are at the heart of the study in this book. After discussing the idea of evil, Scarre turns to the meaning of forgiveness and the conditions for granting it. He defends a broadly utilitarian approach that stresses the role of forgiveness in repairing the damage that has been caused by injurious or offensive behaviour. Scarre then considers the controversial virtue of mercy and the propriety of revengeful behaviour and resentful attitudes. Finally, he deals with the purpose and justification of judicial punishment, paying particular regard to the appropriate treatment of war criminals. In this timely and sensitively written book, Scarre pays close attention to the existing literature and appraises both contemporary and classical contributions to the debate. This book makes an original contribution to an area of ethical thought that has been attracting an increasing amount of attention from philosophers, jurists and political thinkers.

Critical legal scholars have made us aware that law is made up not only of rules but also of language. But who speaks the language of law? And can one lawfully speak in one's voice? For the Italian philosopher Adriana Cavarero, to answer these questions we must not separate who is speaking from the very act of speaking; moreover, we must recuperate the material singularity and relationality of the mouth that speaks. Drawing on Cavarero's work, this book focuses on the potentiality of the voice for resisting law's sovereign structures. For Cavarero, it is the voice that expresses one's living and unrepeatable singularity in a way that cannot be subsumed by the universalities and standards of law. The voice is essentially a material and singular passage of air and vibration that necessarily reveals one's uniqueness in relationality. Speaking discloses this uniqueness, and so one's vulnerability. It therefore leads to possibilities of resistance that, here, bring a fresh approach to longstanding legal theoretical concerns with singularity, ethics and justice.