This book explains the challenge of constitutional pluralism and its importance, showing its theoretical and practical relevance, and giving a sense of why the existing scholarship on the matter is unsatisfactory. The work explores how legal practitioners and theorists have faced the challenge of a society living under two constitutions at the same time. This comes as the European Union, which legally and politically integrates Europe and seems to challenge the view that no State can simultaneously abide by both the venerable national constitutions and the ever-developing EU constitutional law, is increasingly torn between calls for closer integration to face collective challenges and mounting Euroscepticism and nationalism. This work employs a strongly pluralist perspective and a comparative methodology, and looks at constitutional crises outside the EU to ground the claim that pluralism and conflicts are essential elements of modern constitutions. It shows how the challenge of constitutional pluralism depends on a mistaken interpretation of positivist theory and how the latter, reinterpreted in a manner close to legal realism, has the resources to explain pluralism. Finally, the book addresses the issue of constitutional conflicts within the EU: it examines in detail recent cases of open disobedience to EU law by national courts and distinguishes physiological conflict from constitutional pathology. This work will be of particular interest to students and academics in Law and Political Science. It will also be compelling reading for scholars in general jurisprudence, EU law, constitutional and comparative constitutional law, and the history of European integration.

At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between law and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law.

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.

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"Susan Carle has done an extraordinary service. Her collection is sophisticated, challenging, and desperately needed. The legal academy is often sadly prone to treat the ethics of lawyering as an afterthought or a necessary nuisance. This smart collection of critical essays gives the subject the serious attention it deserves."
--Peggy Cooper Davis, New York University School of Law

"Carle has put together an important collection of readings. This book will be a valuable addition to any course on the legal profession."
--David Wilkins, Harvard Law School

"Susan Carle's book brings together the best writings on the more visionary and justice-seeking goals of the legal profession. Lawyers should serve society, clients at large, as well as clients in need. This book will be assigned reading in courses devoted to lawyering and social justice--it should be required reading for all legal professionals."
--Carrie Menkel-Meadow, Georgetown University Law Center

"Lawyers and law students alike will benefit from this volume's strong and persuasive reminder that traditional 'good' lawyering and a moral commitment to social justice can walk hand in hand. Teachers who want to remind students of why they came to law school--to leave the world a better place than they found it--will find this book a great asset."
--Richard Zitrin, author of "Legal Ethics in the Practice of Law"

Legal ethics should be far more than a set of rules on professional responsibility; they can serve as a means for changing power relations, empowering the disenfranchised, and advocating progressive social change. Lawyers' Ethics and the Pursuitof Social Justice broadens the discussion on legal ethics by first introducing the historical and theoretical background and then connecting it to real world issues while addressing lawyers' ethical obligations to work for social justice.

The reader features differing critical approaches and opens up new avenues of ethical debate. While the literature included is diverse and interdisciplinary, it shares a vision of legal ethical inquiry as a means for changing power relations, empowering the disenfranchised, and advocating progressive social change. Through a combination of provocative selections, lively writing, concrete examples of cases and social movements, and incisive editorial commentary, Lawyersa Ethics and the Pursuit of Social Justice defines the emergence of an exciting new field of critical legal ethics scholarship.

Despite Rousseau's legacy to political thought, his contribution as a constitutional theorist is underexplored. Drawing on his constitutional designs for Corsica and Poland, this book argues that Rousseau's constitutionalism is defined chiefly by its socially directive character. His constitutional projects are not aimed, primarily, at coordinating and containing state power in the familiar liberal-democratic sense. Instead, they are aimed at fostering the social conditions in which a fuller sense of freedom - understood broadly as non-domination - can be realised across all social domains. And in turn, since Rousseau views domination as being deeply embedded in complex social practices, his constitutionalism is aimed at fostering a radical austerity - social, economic and cultural - as its foil. In locating Rousseau's constitutional projects within his social and political theory of servitude and domination, this book will challenge the predominant focus and orientation of contemporary republican theory. Leading republican thinkers have drawn on the historical republican canon to articulate a model of constitutionalism which is, on the whole, 'liberal' in focus and orientation. This book will argue that the more communitarian orientation of Rousseau's constitutionalism - that is, its socially-directive focus - stems from a sophisticated and compelling account of the sources of unfreedom in complex societies, sources which are ignored or downplayed by the neo-republican literature. Rousseau embraces a communitarian social politics as part of his constitutional project precisely because, pessimistically, he views domination as being deeply embedded in the social relations of the liberal order.

Contributions to Law, Philosophy and Ecology: Exploring Re-Embodiments is a preliminary contribution to the establishment of re-embodiments as a theoretical strand within legal and ecological theory, and philosophy. Re-embodiments are all those contemporary practices and processes that exceed the epistemic horizon of modernity. As such, they offer a plurality of alternative modes of theory and practice that seek to counteract the ecocidal tendencies of the Anthropocene. The collection comprises eleven contributions approaching re-embodiments from a multiplicity of fields, including legal theory, eco-philosophy, eco-feminism and anthropology. The contributions are organized into three parts: 'Beyond Modernity', 'The Sacred Dimension' and 'The Legal Dimension'. The collection is opened by a comprehensive introduction that situates re-embodiments in theoretical context. Whilst closely bound with embodiment and new materialist theory, this book contributes a unique voice that echoes diverse political processes contemporaneous to our times. Written in an elegant and accessible language, the book will appeal to undergraduates, postgraduates and established scholars alike seeking to understand and take re-embodiments further, both politically and theoretically.

This ground-breaking collection dares to take the next step in the advancement of an autonomous, inter-disciplinary restorative justice field of study. It brings together criminology, social psychology, legal theory, neuroscience, affect-script psychology, sociology, forensic mental health, political sciences, psychology and positive psychology to articulate for the first time a psychological concept of restorative justice. To this end, the book studies the power structures of the restorative justice movement, the very psychology, motivations and emotions of the practitioners who implement it as well as the drivers of its theoreticians and researchers. Furthermore, it examines the strengths and weakness of our own societies and the communities that are called to participate as parties in restorative justice. Their own biases, hunger for power and control, fears and hopes are investigated. The psychology and dynamics between those it aims to reach as well as those who are funding it, including policy makers and politicians, are looked into. All these questions lead to creating an understanding of the psychology of restorative justice. The book is essential reading for academics, researchers, policymakers, practitioners and campaigners.

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.

In British constitutional law, the doctrine of parliamentary sovereignty maintains that Parliament has unlimited legislative authority. Critics have recently challenged this doctrine, on historical and philosophical grounds. This book describes its historical origins and development. The author identifies the reasons why it was adopted, examines its current legal basis, and responds to the critics. The book will be of interest to anyone involved in the legal, historical, or philosophical foundations of the British Constitution.

The field of transitional justice has expanded rapidly since the term first emerged in the late 1990s. Its intellectual development has, however, tended to follow practice rather than drive it. Addressing this gap, Violence, Law and the Impossibility of Transitional Justice pursues a comprehensive theoretical inquiry into the foundation and evolution of transitional justice. Presenting a detailed deconstruction of the role of law in transition, the book explores the reasons for resistance to transitional justice. It explores the ways in which law itself is complicit in perpetuating conflict, and asks whether a narrow vision of transitional justice - underpinned by a strictly normative or doctrinal concept of law - can undermine the promise of justice. Drawing on case material, as well as on perspectives from a range of disciplines, including law, political science, anthropology and philosophy, this book will be of considerable interest to those concerned with the theory and practice of transitional justice.

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.

The Injustice of Punishment emphasizes that we can never make sense of moral responsibility while also acknowledging that punishment is sometimes unavoidable. Recognizing both the injustice and the necessity of punishment is painful but also beneficial. It motivates us to find effective means of minimizing both the use and severity of punishment, and encourages deeper inquiry into the causes of destructive behavior and how to change those causes in order to reduce the need for punishment. There is an emerging alternative to the comfortable but destructive system of moral responsibility and just deserts. That alternative is not the creation of philosophers but of sociologists, criminologists, psychologists, and workplace engineers; it was developed, tested, and employed in factories, prisons, hospitals, and other settings; and it is writ large in the practices of cultures that minimize belief in individual moral responsibility. The alternative marks a promising path to less punishment, less coercive control, deeper common commitment, and more genuine freedom.

The question of objectivity in legal interpretation has emerged in recent years as a highly important topic in contemporary jurisprudence. This original book addresses the issue of how and in what sense legal interpretation can be objective. The author supports the possibility of objectivity in law and spells out the content of objectivity involved. He then provides a comprehensive defence against the classical, as well as less well-known, objections to the possibility of objectivity in legal interpretation. The discussion is firmly grounded in metaphysics, which sets the book apart from other similar discussions in jurisprudence. Stavropoulos identifies an important source of resistance to acceptance of the possibility of objectivity in legal interpretation: a widely-held but faulty semantic. He then develops an alternative semantic framework which draws on influential theories in contemporary philosophy. The book shows that objectivism is a natural, commonsensical position, and rejects the currently popular notion that objectivism requires extravagant or bizarre metaphysics. Furthermore, the discussion presents the opportunity to reinterpret major debates in jurisprudence and to show how influential theories, notably H. L. A. Hart's and Ronald Dworkin's, bear on that central issue.

We speak of being 'free' to speak our minds, free to go to college, free to move about; we can be cancer-free, debt-free, worry-free, or free from doubt. The concept of freedom (and relatedly the notion of liberty) is ubiquitous but not everyone agrees what the term means, and the philosophical analysis of freedom that has grown over the last two decades has revealed it to be a complex notion whose meaning is dependent on the context. The Oxford Handbook of Freedom will crystallize this work and craft the first wide-ranging analysis of freedom in all its dimensions: legal, cultural, religious, economic, political, and psychological. This volume includes 28 new essays by well regarded philosophers, as well some historians and political theorists, in order to reflect the breadth of the topic. This handbook covers both current scholarship as well as historical trends, with an overall eye to how current ideas on freedom developed. The volume is divided into six sections: conceptual frames (framing the overall debates about freedom), historical frames (freedom in key historical periods, from the ancients onward), institutional frames (freedom and the law), cultural frames (mutual expectations on our 'right' to be free), economic frames (freedom and the market), and lastly psychological frames (free will in philosophy and psychology).

Gideon Yaffe presents a ground-breaking work which demonstrates the importance of philosophy of action for the law. Many people are serving sentences not for completing crimes, but for trying to. So the law governing attempted crimes is of practical as well as theoretical importance. Questions arising in the adjudication of attempts intersect with questions in the philosophy of action, such as what intention a person must have, if any, and what a person must do, if anything, to be trying to act. Yaffe offers solutions to the difficult problems courts face in the adjudication of attempted crimes. He argues that the problems courts face admit of principled solution through reflection either on what it is to try to do something; or on what evidence is required for someone to be shown to have tried to do something; or on what sentence for an attempt is fair given the close relation between attempts and completions. The book argues that to try to do something is to be committed by one's intention to each of the components of success and to be guided by those commitments. Recognizing the implications of this simple and plausible position helps us to identify principled grounds on which the courts ought to distinguish between defendants charged with attempted crimes.

This book develops a sociological understanding of law making in the European Union. In particular, the book focuses on the social function of law in new governance structures promoting decentralized and flexible procedures that encourage deliberation, participation of stakeholders, and public dialogue. It pays attention to both the practical knowledge and the power relations underpinning law making, while seeking to bring to the foreground the importance of compromise in the process. The empirical substantiation of the argument discusses the regulation of technology in the European Union and is premised on case studies of governance of the Internet, patents of high technology, filters used on the Internet to block harmful material, trademark law and domain name dispute resolution by ICANN. To this effect, the book studies the dynamics of constructing a legal argument inside the European Commission, and its role in the process of coordinating the creation of networks, securing enforcement in self regulatory regimes, and steering activity on the part of autonomous groups of actors.

This work presents arguments for forgiveness, mercy, and clemency abound. These arguments flourish in organized religion, fiction, philosophy, and law as well as in everyday conversations of daily life among parents and children, teachers and students, and criminals and those who judge them. As common as these arguments are, we are often left with an incomplete understanding of what we mean when we speak about them. This volume examines the registers of individual psychology, religious belief, social practice, and political power circulating in and around those who forgive, grant mercy, or pose clemency power. The authors suggest that, in many ways, necessary examinations of the questions of forgiveness and pardon and the connection between mercy and justice are only just beginning.

This volume addresses the relationship between law and neoliberalism. Assembling work from established and emerging legal scholars, political theorists, philosophers, historians, and sociologists from around the world - including the Americas, Australia, Europe, and the United Kingdom - it addresses the conceptual, legal, and political relationships between liberal legality and neoliberal economics. More specifically, the book analyses the role that legality plays in the dominant economic force of our time, offering both a legal corrective to scholarship in economics and political economy that has paid insufficient attention to legal ideas, and, at the same time, a political economic corrective to legal scholarship that has only recently turned to theorizing neoliberalism. It will be of enormous interest to those working at the intersection of law and politics in our neoliberal age.

This is the first volume that directly compares the practices of adversarial and inquisitorial systems of law from a psychological perspective. It aims at understanding why American and European continental systems differ so much, while both systems entertain much support in their communities. The book is written for advanced audiences in psychology and law.

Abraham Lincoln worried that the "walls" of the constitution would ultimately be leveled by the "silent artillery of time." His fears materialized with the 1913 ratification of the Seventeenth Amendment, which, by eliminating federalism's structural protection, altered the very nature and meaning of federalism. Ralph A. Rossum's provocative new book considers the forces unleashed by an amendment to install the direct election of U.S. Senators. Far from expecting federalism to be protected by an activist court, the Framers, Rossum argues, expected the constitutional structure, particularly the election of the Senate by state legislatures, to sustain it. In Federalism, the Supreme Court, and the Seventeenth Amendment Rossum challenges the fundamental jurisprudential assumptions about federalism. He also provides a powerful indictment of the controversial federalist decisions recently handed down by an activist U.S. Supreme Court seeking to fill the gap created by the Seventeenth Amendment's ratification and protect the original federal design. Rossum's masterful handling of the development of federalism restores the true significance to an amendment previously consigned to the footnotes of history. It demonstrates how the original federal design has been amended out of existence; the interests of states as states abandoned and federalism left unprotected, both structurally and democratically. It highlights the ultimate irony of constitutional democracy: that an amendment intended to promote democracy, even at the expense of federalism, has been undermined by an activist court intent on protecting federalism, at the expense of democracy.

JirA PribA!n's book contributes to the field of systems theory of law in the context of European legal and political integration and constitution-making. It puts recent European legislative efforts and policies, especially the EU enlargement process, in the context of legal theory and philosophy. Furthermore, the author shows that the system of positive law has a symbolic meaning, reflecting how it also contributes to the semantics of political identity, democratic power and moral values, as well as the complex relations between law, politics and morality.

This title was first published in 2001. A collection of some of the most significant and influential articles on the theory of justice written from the perspectives of legal theory, ethics, political philosophy and political theory.

This title was first published in 2003. Xenotransplantation - the transplantation of animal organs into humans - poses a fascinating moral dilemma. Should this ability to extend the lives of millions of older people be permitted given that it might trigger a new pandemic similar to AIDS? This study examines the moral dilemma from a combination of humanistic, legalistic, bioethical, economical and technological perspectives. The first part of the book demonstrates that xenografts are the only realistic near-term technological answer to the organ shortage problem. The balance of the book is devoted to assessing whether doctrines such as the 'right to health care' trump the moral and ethical conundrums posed by xenotransplantation. The book concludes with a 'geoethical' solution that proposes authorization of xenotransplantation subject to the prior implementation of a new international organization for epidemiology and basic health care. It also suggests that the costs of operating such an organization could be covered by a global tax on xenografts.

Questions of religious liberty have become flashpoints of controversy in virtually every area of life around the world. Despite the protection of religious liberty at both national and supranational levels, there is an increasing number of conflicts concerning the proper way to recognize it - both in modern secular states and in countries with an established religion or theocratic mode of government. This book provides an analysis of the general concept of religious liberty along with a close study of important cases that can serve as test beds for conflict resolution proposals. It combines the insights of both pure academics and experienced legal practitioners to take a fresh look at the nature, scope and limits of religious liberty. Divided into two parts, the collection presents a blend of legal and philosophical approaches, and draws on cases from a wide range of jurisdictions, including Brazil, India, Australia, the USA, the Netherlands, and Canada. Presenting a broad range of views, this often provocative volume makes for fascinating reading for academics and researchers working in the areas of law and religion, legal philosophy and human rights.