Quelle place occupe le droit dans l'Encyclopedie de Diderot et de D'Alembert? Quels rapports le mouvement encyclopedique et l'esprit de la Declaration des droits de 1789 entretiennent-ils? Dans cette etude novatrice, Luigi Delia explore les enjeux du droit dans l'entreprise emblematique des Lumieres. Encadree par la publication de deux ouvrages fondamentaux - L'Esprit des lois de Montesquieu (1748) et le Traite des delits et des peines de Beccaria (1765) -, l'Encyclopedie propose une nouvelle conception de la justice en faisant dialoguer des cultures juridiques differentes, celle des juristes et celle des philosophes. A partir d'articles 'raisonnes' rediges par la figure emancipatrice du chevalier de Jaucourt, L. Delia met en relief l'esprit de reforme qui souffle sur deux grands sujets de discussion au XVIIIe siecle: la justice naturelle et le droit penal. Guerre, esclavage, loi, code, sanction, suicide, duel, torture comptent parmi les themes de reflexion abordes. L'ouvrage etudie egalement Beccaria, autre personnalite essentielle du moment; il souligne l'ascendant de ses idees sur Diderot, De Felice, Merlin de Douai, Jacques-Vincent Delacroix, et en examine la reception dans le cercle d'Yverdon et dans l'Encyclopedie methodique de Panckoucke. Ce faisant, L. Delia dresse un tableau des principales polemiques de l'epoque suscitees par trois questions majeures: la torture judiciaire, la peine de mort et la condition des detenus, questions qui anticipent a plus d'un titre les debats contemporains sur la justice et les droits de l'homme.

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.

Common-law judgments tend to be more than merely judgments, for judges often make pronouncements that they need not have made had they kept strictly to the task in hand. Why do they do this? The Intricacies of Dicta and Dissent examines two such types of pronouncement, obiter dicta and dissenting opinions, primarily as aspects of English case law. Neil Duxbury shows that both of these phenomena have complex histories, have been put to a variety of uses, and are not amenable to being straightforwardly categorized as secondary sources of law. This innovative and unusual study casts new light on - and will prompt lawyers to pose fresh questions about - the common law tradition and the nature of judicial decision-making.

Common-law judgments tend to be more than merely judgments, for judges often make pronouncements that they need not have made had they kept strictly to the task in hand. Why do they do this? The Intricacies of Dicta and Dissent examines two such types of pronouncement, obiter dicta and dissenting opinions, primarily as aspects of English case law. Neil Duxbury shows that both of these phenomena have complex histories, have been put to a variety of uses, and are not amenable to being straightforwardly categorized as secondary sources of law. This innovative and unusual study casts new light on - and will prompt lawyers to pose fresh questions about - the common law tradition and the nature of judicial decision-making.

How does one lead a life of law, love, and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This book returns to those roots to trace the twists and turns that these ideas have taken as they move from the sacred to the secular. It relates our most important mode of social organization, law, to two of our most cherished values, love and freedom. In this book, Joshua Neoh sketches the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism). Law, Love, and Freedom brings together a diverse cast of characters, including Paul and Luther, Augustine and Aquinas, monks and Gnostics, and constitutionalists and anarchists. This book is valuable to any lawyers, philosophers, theologians and historians, who are interested in law as a humanistic discipline.

This book argues for the abolition of the employment system in favor of workplace democracy and thus escapes the usual capitalism-versus-socialism binary choice by reframing the basic issue as the employment contract, not private property or a market economy. The author repositions the political and economic debate in the lineage of abolitionism - against the owning of other people - which in its modern version of neo-abolitionism would also abolish the renting, or hiring, employing, or leasing of other people. The overall argument is based on three recovered theories, each one of which is sufficient to yield the neo-abolitionist conclusion. These three rights-based theories are developed throughout the book. The three theories are 1) inalienable rights theory, 2) the natural rights or labor theory of property, and 3) democratic theory as based on a democratic constitution that only delegates governance rights versus a non-democratic constitution that alienates governance rights. The book, therefore, is a must-read for everybody interested in a better understanding of the political economy, workplace democracy, rights-based theories, and the employment system.

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.

This book discusses the relation between morality and politics, and morality and law, a field that has been studied for more than two thousand years The law is a part of human culture, and this touches upon a dynamic reality that is connected to the relation between nature and freedom, nature and culture. If such relations are not clearly understood, as is the case today, the relation between morality and law cannot be properly comprehended either. The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. And since the relationship involves criminal law, legal philosophy and legal history, interdisciplinary approaches are always needed. Featuring fifteen original contributions by legal scholars from various European and American universities, the book does not pretend to solve the complexity of the relation between morality and criminal law, but instead expresses criticism, offers some proposals and stimulates further thought. The book tackles the topic from an interdisciplinary perspective (criminal law, constitutional law, legal philosophy and legal history, among others). As such, it appeals not only to scholars and students, but also to lawyers, policymakers, historians, theologians, philosophers and general readers who are interested in the legal, social, political and philosophical issues of our time.

What is the law of the law? What produces our craven subservience to linguistic norms, and our shocking indifference to the phenomenon of universal suffering? In a path-breaking new work of philosophy, Louis Wolcher seeks to answer these questions from the standpoint of Zen Buddhism. Bringing an Eastern sensibility into contact with three of the most important themes in Western philosophy, Beyond Transcendence in Law and Philosophy meticulously investigates three of the twentieth century's most important philosophers: Martin Heidegger - on being, Emmanuel Levinas - on ethics, and Ludwig Wittgenstein - on language. In the context of the larger Western obsession with transcending the ordinary, Louis Wolcher argues that the yearning for transcendence is born of the illusion that there is a fundamental difference between the ordinary and the profound. Employing Zen koans and stories to advance a 'deflationary' view of language and knowledge, he goes on to argue that the norms of transcendence to which we cling are not eternal truths but artefacts of desperate minds adrift on a sea of impermanence. What used to seem so majestically True, Right and Just thus shows itself to be utterly mundane: as merely true, right and just. What is left, however, is not nihilism - for clinging to a view of 'nothingness' is just as deluded as clinging to a view of 'somethingness' - but rather a new beginning of compassionate concern for the suffering of others. Beyond Transcendence in Law and Philosophy is a strikingly original synthesis of Eastern and Western thought. It will enlighten philosophers and legal theorists, as well as those who are interested in or open to the insights of Zen Buddhism.

This book is the first Western-language monograph on the study of the Qingshui River manuscripts. By examining over 3,000 contracts and other manuscripts, this book offers constructive insights into the long-standing question of how and why a society in late imperial China could maintain a well-functioning social system with few laws but many contracts, i.e., Hobbesian "words without sword." Three interrelated questions, what contracts were, how and why they worked, are explained successively. Thus, this book presents a non-stereotypical "contract society" in southwest China, arguing that the social order which provides predictability and regularity for economic prosperity could be formed and maintained through contracts even under the condition of relatively weak influence of governmental and legal authorities. This book benefits readers who are interested in law, society, and history. While presenting the socio-legal landscape of a frontier area in late imperial China for historians, this book provides a novel and empirical interpretation of the supposedly well-known contract device for legal researchers, thereby proposing materials for an integrated theoretical explanatory framework of contracts in general. By employing the innovative theory of blockchain in its key argumentation, the book offers a creative interpretation of historical and social phenomena.

This is a book about jurisprudence-or legal philosophy. The legal philosophical texts under consideration are-to say the least-unorthodox. Tolkien, Buffy the Vampire Slayer, Harry Potter, Legally Blonde, and others are referenced as instances of what the author calls lex populi-"pop law". Here, however, issues of legal philosophy are heavily coded, for few of these pop cultural texts announce themselves as expressly legal. Lex Populi reads these texts "jurisprudentially", with an eye to their hidden legal philosophical meanings, enabling connections such as: Tolkien's Ring as Kelsen's grundnorm; vampire slaying as legal language's semiosis; and Hogwarts as substantively unjust. Lex Populi attempts not only a jurisprudential reading of popular culture, but also a popular rereading of jurisprudence, removing it from the legal experts in order to restore it to the public at large: a lex populi by and for the people.

Lawyers, law students and their teachers all too frequently overlook the most comprehensive, adaptable and practical analysis of legal discourse ever devised: the classical art of rhetoric. Classical analysis of legal reasoning, methods and strategy is the foundation and source for most modern theories on the topic. Beginning with Aristotle's Rhetoric and culminating with Cicero's De Oratore and Quintilian's Institutio Oratoria, Greek and Roman rhetoricians created a clear, experience-based theoretical framework for analyzing legal discourse. This book is the first to systematically examine the connections between classical rhetoric and modern legal discourse. It traces the history of legal rhetoric from the classical period to the present day and shows how modern theorists have unknowingly benefited from the classical works. It also applies classical rhetorical principles to modern appellate briefs and judicial opinions to demonstrate how a greater familiarity with the classical sources can deepen our understanding of legal reasoning.

In this unique book, Alexander Lian, a practicing commercial litigator, advances the thesis that the most famous article in American jurisprudence, Oliver Wendell Holmes's "The Path of the Law," presents Holmes's leading ideas on legal education. Through meticulous analysis, Lian explores Holmes's fundamental ideas on law and its study. He puts "The Path of the Law" within the trajectory of Holmes's jurisprudence, from earliest scholarship to The Common Law to the occasional pieces Holmes wrote or delivered after joining the U.S. Supreme Court. Lian takes a close look at the reactions "The Path of the Law" has evoked, both positive and negative, and restates the essay's core teachings for today's legal educators. Lian convincingly shows that Holmes's "theory of legal study" broke down artificial barriers between theory and practice. For contemporary legal educators, Stereoscopic Law reformulates Holmes's fundamental message that the law must been seen and taught three-dimensionally.

The Jewish leftist lawyer Ernst Fraenkel was one of twentieth-century Germany's great intellectuals. During the Weimar Republic he was a shrewd constitutional theorist for the Social Democrats and in post-World War II Germany a respected political scientist who worked to secure West Germany's new democracy. This book homes in on the most dramatic years of Fraenkel's life, when he worked within Nazi Germany actively resisting the regime, both publicly and secretly. As a lawyer, he represented political defendants in court. As a dissident, he worked in the underground. As an intellectual, he wrote his most famous work, The Dual State - a classic account of Nazi law and politics. This first detailed account of Fraenkel's career in Nazi Germany opens up a new view on anti-Nazi resistance - its nature, possibilities, and limits. With grit, daring and imagination, Fraenkel fought for freedom against an increasingly repressive regime.

The fact that aspects of witnesses and evidence put them in the centre of the institutional and cultural (e.g. religious, literary) construction of ancient societies indicates that it is important to keep offering nuanced approaches to the topic of this volume. To advance knowledge of the processes of presenting witnesses and gathering, or constructing, evidence is, in fact, to better and more fully understand the ways in which deliberative Athenian democracy functions, what the core elements of political life and civic identity are, and how they relate to the system of using logos to make decisions. For, witnesses and evidence were important prerequisites of getting the Athenian citizenship and exerting the civic/political identity as a member of the community. It is important, therefore, all the matters that relate to information-gathering and decision-making to be examined anew. Emphasis can be placed on a variety of genres to allow scholars recreate the fullest and clearest possible image about the witnessing and evidencing in antiquity. Chapters in this volume include considerations of social, political, literary, and moral theory, alongside studies of the impact of information-gathering and decision-making in oratory and drama, with a steady focus on the application of key ideas and values in social and political justice to issues of pressing ethical concern.

This book analyzes human rights and crime prevention challenges from the perspective of the 1948 Universal Declaration of Human Rights and the 2030 United Nations Sustainable Development Agenda, in particular its goal 16 on promoting peaceful, inclusive and just societies, the creation and development of which depend on the interplay between various secular and non-secular (f)actors. The book reflects on the implementation of these two legal instruments from a "back to the future" standpoint, that is, drawing on the wisdom of contributors to the 2030 Agenda from the past and present in order to offer a constructive inter-disciplinary and intergenerational approach. The book's intended readership includes academics and educationists, criminal justice practitioners and experts, diplomats, spiritual leaders and non-governmental actors; its goal is to encourage them to pursue a socially and human rights oriented drive for "larger freedom," which is currently jeopardized by adverse political currents.

This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law.

In the course of articulating his monumental theory of political justification, Thomas Hobbes developed a sustained and detailed approach to law and legal questions. Unfortunately legal philosophers have largely ignored Hobbes' remarks on law, and philosophers have only begun to explore it. This collection aims to spur interest in Hobbes' legal philosophy, by collecting the best recent philosophical writings on Hobbes' views on law. The essays address questions such as whether Hobbes was a positivist, a natural law theorist or neither. They also address Hobbes' treatment of natural law, his account of equity, as well as his more specific views on topics like contract, punishment, self-defense, civil disobedience, and international law. The essays collected here provide an excellent survey of the various legal questions Hobbes addressed.

This book studies the judicial evolution of the Qing Dynasty. It sums up the changes from six major aspects: 1. Banfang( )emerged in the late Qianlong period; 2. The opening of capital appeals( )early in Jiaqing's reign; 3. The consular jurisdiction was established during Daoguang's reign; 4. The execution on the spot ( )was started in Daoguang and Xianfeng periods; 5. The introduction of fashenju ( ,a interrogatory court) happened during Tongzhi's reign; 6. Late in Guangxu's reign, banishment was abolished, and reforms were made for prisons. In the past, people did not have a comprehensive understanding of these big changes. From the perspective of legal culture, scholars often criticize traditional Chinese law focuses on criminal law while ignores civil law in terms of legal culture, but this situation can be explained in part by the inadequate allocation of resources and authoritarian resources in traditional societies. Using a large number of archives and precious materials such as private notes that were not noticed by academics in the past, this book adopts the research path of new historical jurisprudence to explore the inner logic of judicial evolution in the Qing Dynasty, focusing on the triangular connection between legal rules, resources, and temporal and spatial constructions, which is an important contribution to the study of traditional Chinese law.

This book analyses the history of international law to reveal the significant role utopianism has played in developing the international legal system. In fact, when pinpointing the legal system's most accelerated phases of development, it becomes increasingly apparent how integral utopianism has been in dealing with the international community's most troubled periods such as the World Wars. However, States have on numerous occasions undermined utopianism, leading to situations where individuals and communities have been vulnerable to modes of oppression such as war or repressive regimes. Thus, by examining the League of Nations and United Nations, this book seeks to show why utopianism continues to be a vital ingredient when the international community is seeking to ensure its loftiest and most ambitious goals such as maintaining international peace and security, and why for the sake of such utopian aspirations, the primary position States enjoy in international law requires reassessment.

Bringing together scholars from a broad range of theoretical perspectives, The Language of Argumentation offers a unique overview of research at the crossroads of linguistics and theories of argumentation. In addition to theoretical and methodological reflections by leading scholars in their fields, the book contains studies of the relationship between language and argumentation from two different viewpoints. While some chapters take a specific argumentative move as their point of departure and investigate the ways in which it is linguistically manifested in discourse, other chapters start off from a linguistic construction, trying to determine its argumentative function and rhetorical potential. The Language of Argumentation documents the currently prominent research on stylistic aspects of argumentation and illustrates how the study of argumentation benefits from insights from linguistic models, ranging from theoretical pragmatics, politeness theory and metaphor studies to models of discourse coherence and construction grammar.

Can the concept of law be indiscriminately extended to times and places in which it did simply not exist? Such an extension is at best useless and at worst misleading. Producing an intelligible jurisprudence of the concept of law means keeping it within the reasonable boundaries of its contemporary common-sense understanding: positive law. Parallel to Western societies in which it firstly emerged, the concept of positive law developed in many places, including countries characterized as Muslim. There, it faced other existing normativities, like customs and the Sharia. This book aims, from the Muslim world's perspective, to clarify the uses of the concept of law and the ways of studying it, to describe some of its historical developments, including the ideas of constitutional law, customary law and forensic evidence, and to describe present-day practices, including reference to law sources, rules and interpretation.

Drawing on theories of legal pluralism, this book tests whether and to what extent claims of the modern nation-state laws to exclusive dominance over other spheres are tenable, and reassesses the operation of law in society. Incorporating a combination of legal theory, post-modern critique and socio-legal analysis of three current jurisdictions in which Muslims play an important role, the volume identifies Muslims' current socio-legal situation and attitudes from different perspectives and reconciles them with modern legal systems in three key countries. It analyzes the conflict between the assumptions of modern legal systems and plural legal realities, and also examines attempts by modern legal systems to impose official laws in the face of resistance from unofficial Muslim laws and discusses possible responses to the challenge of dynamic Muslim legal pluralism. A valuable resource for students, researchers and academics with an interest in the areas of Islamic law and politics, and the interplay between secular law and religious/cultural traditions.

This book presents an in-depth discussion on two concepts from the field of philosophy and law, in order to improve our understanding of the relation between "fact" and "evidence" in judicial process. Since fact-finding is a difficult task for judges, proof by evidence has been devised to help them access the truth. However, in the process of judicial fact-finding, there is always a gap between fact and truth. This book covers a wide range of topics, from reflections on the concept of "fact," "evidence" and "fact-finding" in the field of philosophy and law to individual case studies. As such it is a useful reference resource on the continuing research on the judicial proof process for students and scholars.

Wittgenstein is described in the Oxford Companion to Philosophy as 'the leading analytical philosopher of the twentieth century, whose two major works altered the course of the subject'. This exceptional reference volume highlights and explores the extensive influence of Wittgenstein's work on contemporary legal philosophy.