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 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.

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 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.

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.

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.

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.

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.

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.

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 addresses theoretical problems concerning legal evidence. The concept of evidence is expected to fulfill a number of distinct roles in science and philosophy, but also in legal theory and law, some of which are complementary, while others are conflicting. In their profession, lawyers have to deal with evidence and proof. Yet the legal concept of evidence is constantly changing, and the debate concerning the distinction between a legal concept of evidence, the ordinary concept of evidence and the concept of evidence in science is far from being settled. What is more, the problem of evidence is central to both epistemology and the philosophy of science, and by extension to our academic thinking on law. In short, legal theorists' interest in evidence may include such diverse objects as a bloody knife, sensory data, linguistic entities or psychologically recognized beliefs. The book surveys selected theoretical roles that the concept of evidence plays and explores their relations and interconnections. The content is divided into three parts, investigating: (1) evidence in epistemology and the philosophy of science, which focuses on evidence methodologies and the problem of proof in legal scholarship; (2) evidence in legal theory and legal philosophy, where particular attention is paid to the interplay between evidence, legal reasoning and the binding force of such reasoning; and (3) evidence in law, where theoretical problems pertaining to witnesses, expert opinions, explanations of the accused, statistical evidence and neuroscientific evidence are examined.

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.

Shame punishment has existed for perhaps as long as people have been punished, and the issue has been revisited in recent years to help improve crime reduction efforts. In this collection, shame punishment is examined from various critical perspectives, including its relation with expressivism, the diversity of shame punishment used today, the link between shame punishment and restorative justice, the relationship between dignity and shame punishment, shame punishment and its use for sex offenders, and critics of shame punishment in its different incarnations. The selected essays are from leading experts and represent the most important contributions to scholarly research in the field.

Intellectual property (IP) law operates with the ontological assumption that immaterial goods such as works, inventions, and designs exist, and that these abstract types can be owned like a piece of land. Alexander Peukert provides a comprehensive critique of this paradigm, showing that the abstract IP object is a speech-based construct, which first crystalised in the eighteenth century. He highlights the theoretical flaws of metaphysical object ontology and introduces John Searle's social ontology as a more plausible approach to the subject matter of IP. On this basis, he proposes an IP theory under which IP rights provide their holders with an exclusive privilege to use reproducible 'Master Artefacts.' Such a legal-realist IP theory, Peukert argues, is both descriptively and prescriptively superior to the prevailing paradigm of the abstract IP object. This work was originally published in German and was translated by Gill Mertens.

The focus of this monograph lies in the construction of a theory of legal obligation, understanding it as a discrete notion with its own defining traits. In this work, Bertea specifically addresses the question: how should legal obligation be distinctively conceptualized? The conceptualization of legal obligation he defends in this work gradually emerges from a critical assessment of the theories of legal obligation that have been most influential in the contemporary legal-theoretical debate. Building on such critical analysis, Bertea's study purports to offer a novel and unconventional conceptualization of legal obligation, which is characterized as a law-engendered intersubjective reason for carrying out certain courses of conduct.

Algorithms influence every facet of modern life: criminal justice, education, housing, entertainment, elections, social media, news feeds, work... the list goes on. Delegating important decisions to machines, however, gives rise to deep moral concerns about responsibility, transparency, freedom, fairness, and democracy. Algorithms and Autonomy connects these concerns to the core human value of autonomy in the contexts of algorithmic teacher evaluation, risk assessment in criminal sentencing, predictive policing, background checks, news feeds, ride-sharing platforms, social media, and election interference. Using these case studies, the authors provide a better understanding of machine fairness and algorithmic transparency. They explain why interventions in algorithmic systems are necessary to ensure that algorithms are not used to control citizens' participation in politics and undercut democracy. This title is also available as Open Access on Cambridge Core.

Algorithms influence every facet of modern life: criminal justice, education, housing, entertainment, elections, social media, news feeds, work... the list goes on. Delegating important decisions to machines, however, gives rise to deep moral concerns about responsibility, transparency, freedom, fairness, and democracy. Algorithms and Autonomy connects these concerns to the core human value of autonomy in the contexts of algorithmic teacher evaluation, risk assessment in criminal sentencing, predictive policing, background checks, news feeds, ride-sharing platforms, social media, and election interference. Using these case studies, the authors provide a better understanding of machine fairness and algorithmic transparency. They explain why interventions in algorithmic systems are necessary to ensure that algorithms are not used to control citizens' participation in politics and undercut democracy. This title is also available as Open Access on Cambridge Core.

Despite the tremendous progress in the development of scientific knowledge, the understanding of the causes of poverty and inequality, and the role of politics and governance in addressing modern challenges, issues such as social inclusion, poverty, marginalization and despair continue to be a reality across the world - and most often impact Indigenous Peoples. At the Margins of Globalization explores how Indigenous Peoples are affected by globalization, and the culture of individual choice without responsibility that it promotes, while addressing what can be done about it. Though international trade and investment agreements are unlikely to go away, the inclusion of Indigenous rights provisions has made a positive difference. This book explains how these provisions operate and how to build from their limited success.

This book builds on the success of the First International Conference on Facts and Evidence: A Dialogue between Law and Philosophy (Shanghai, China, May 2016), which was co-hosted by the Collaborative Innovation Center of Judicial Civilization (CICJC) and East China Normal University. The Second International Conference on Facts and Evidence: A Dialogue between Law and History was jointly organized by the CICJC, the Institute of Evidence Law and Forensic Science (ELFS) at China University of Political Science and Law (CUPL), and Peking University School of Transnational Law (STL) in Shenzhen, China, on November 16-17, 2019. Historians, legal scholars and legal practitioners share the same interest in ascertaining the "truth" in their respective professional endeavors. It is generally recognized that any historical study without truthful narration of historical events is fiction and that any judicial trial without accurate fact-finding is a miscarriage of justice. In both historical research and the judicial process, practitioners are invariably called upon, before making any arguments, to prove the underlying facts using evidence, regardless of how the concept is defined or employed in different academic or practical contexts. Thus, historians and legal professionals have respectively developed theories and methodological tools to inform and explain the process of gathering evidentiary proof. When lawyers and judges reconsider the facts of cases, "questions of law" are actually a subset of "questions of fact," and thus, the legal interpretation process also involves questions of "historical fact." The book brings together more than twenty leading history and legal scholars from around the world to explore a range of issues concerning the role of facts as evidence in both disciplines. As such, the book is of enduring value to historians, legal scholars and everyone interested in truth-seeking.

The book offers contributions to a philosophical and realistic approach to the place of adjudication in contemporary constitutional democracies. Bringing together scholars from different legal and philosophical backgrounds, the book purports to cast light on the role(s) of judges and the function of judicial interpretation inside of constitutional states, from the standpoint of legal realism as a revisited and sophisticated jurisprudential outlook. In so doing, the book also copes with a few major jurisprudential issues, like, e.g., determining the ideas that make up the core of legal realism, exploring the relation between legal realism and legal positivism, identifying the boundaries of judicial interpretation as they appear from a realist standpoint, as well as considering some skeptical outlooks on the very claims of contemporary legal realism.

Expropriation is a hotly debated issue in international investment law. This is the first study to provide a detailed analysis of its norm-theoretical dimension, setting out the theoretical foundations underlying its understanding in contemporary legal scholarship and practice. Joerg Kammerhofer combines a doctrinal discussion with a theoretical analysis of the structure of the law in this area, undertaking a novel approach that critically re-evaluates existing case-law and writings. His approach critiques the arguments for a single expropriation norm based on custom, interpretation and arbitral precedents within international investment law, drawing also on generalist international legal thought, to show that both cosmopolitan and sovereigntist arguments are largely political, not legal. This innovative work will help scholars to understand the application of theory to investment law and help specialists in the field to improve their arguments.