In Philosophy and International Law, David Lefkowitz examines core questions of legal and political philosophy through critical reflection on contemporary international law. Is international law really law? The answer depends on what makes law. Does the existence of law depend on coercive enforcement? Or institutions such as courts? Or fidelity to the requirements of the rule of law? Or conformity to moral standards? Answers to these questions are essential for determining the truth or falsity of international legal skepticism, and understanding why it matters. Is international law morally defensible? This book makes a start to answering that question by engaging with recent debates on the nature and grounds of human rights, the moral justifiability of the law of war, the concept of a crime against humanity, the moral basis of universal jurisdiction, the propriety of international law governing secession, and the justice of international trade law.

The text begins by presenting general considerations on the rule of law after communism, and then moves its focus inward to consider more particular problems. Part one of the book involves the exploration of the concept of the rule of law itself and the second part considers its most explicitly developed application: constitutionalism. The third part looks into some of the moral dilemmas that are opened up when an attempt is made to adapt law to confront an often distasteful past - not all traces of which have passed. In the fourth part of the book the distinctive problems of crime in post-communist societies is examined, and part five deals with some international implications and ambitions stimulated by the collapse of communism and its aftermath.

This is volume three in the series, and presents the edited proceedings of the 1997 Association for Legal and Social Philosophy Conference. The papers cover issues relating to communitarianism and citizenship from socio-legal and socio-poltical perspectives. The papers are a collection drawn from international authors and cover a variety of subjects such as tolerance, social citizenship and social rights and civil rights in a global context.

In Philosophy and International Law, David Lefkowitz examines core questions of legal and political philosophy through critical reflection on contemporary international law. Is international law really law? The answer depends on what makes law. Does the existence of law depend on coercive enforcement? Or institutions such as courts? Or fidelity to the requirements of the rule of law? Or conformity to moral standards? Answers to these questions are essential for determining the truth or falsity of international legal skepticism, and understanding why it matters. Is international law morally defensible? This book makes a start to answering that question by engaging with recent debates on the nature and grounds of human rights, the moral justifiability of the law of war, the concept of a crime against humanity, the moral basis of universal jurisdiction, the propriety of international law governing secession, and the justice of international trade law.

Studies in Law, Politics, and Society provides a vehicle for the publication of scholarly articles within the broad parameters of interdisciplinary legal scholarship. In this latest edition of this highly successful research series, chapters examine a diverse range of legal issues and their impact on and intersections with society. This volume features a special section with papers dedicated to law and disability. The chapters examine issues of HIV, obesity, disability rights, assisted suicide and prenatal testing. Other papers included in this important volume address the right to education for migrant children in the United States and the rights to citizenship of British children. This volume brings together leading scholars and will be vital reading for all those researching in this subject area.

Paradigmatic transition is the idea that ours is a time of transition between the paradigm of modernity, which seems to have exhausted its regenerating capacities, and another, emergent time, of which so far we have seen only signs. Modernity as an ambitious and revolutionary sociocultural paradigm based on a dynamic tension between social regulation and social emancipation, the prevalent dynamic in the sixteenth century, has by the twenty-first century tilted in favour of regulation, to the determent of emancipation. The collapse of emancipation into regulation, and hence the impossibility of thinking about social emancipation consistently, symbolizes the exhaustion of the paradigm of modernity. At the same time, it signals the emergence of a new paradigm or new paradigms. This updated 2020 edition is written for students taking law and globalization courses, and political science, philosophy and sociology students doing optional subjects.

This is a book on "equity in the civil law tradition" from the double perspective of legal history and comparative law. It is intended not only for civil lawyers who want to better understand the role and history of equity in their own legal tradition, but also - and perhaps more saliently - for common lawyers who are curious about why the history of equity has unfolded so differently on the continent of Europe and in Latin America. The author begins with the investigation of the philosophical foundations of the Western notion of equity in the teachings of Plato and Aristotle and of how their ideas affected the works of the great Attic orators (chapter 2). He then addresses the way in which Roman law turned this notion into a legal concept of considerable practical importance (chapter 3) and how it survived the fall of Rome and was later elaborated in the Middle Ages by civilists and canonists (chapter 4). Subsequently, the author analyses how the notion of equity was dealt with in the Modern Era by legal humanists, Protestant and Catholic theologians, scholars of the usus modernus pandectarum and of Roman-Dutch law, and then by legal rationalism and the philosophers of the Enlightenment (chapter 5). He then deals with the history of equity on the continent since the fragmentation of the ius commune and the codifications of the nineteenth century and with its reception in Latin America (chapter 6). Finally, the author offers some closing remarks on the fundamental equivocalness (or relativity, as some scholars put it) of the notion of equity in the civil law tradition today (conclusion).

This book explores the intellectual history of contract law in ancient China by employing archaeological and empirical methodologies. Divided into five chapters, it begins by reviewing the origin of the contract in ancient China, and analyzing its name, primary form, historical premise and functions. The second chapter discusses free will and lawfulness in the establishment of a contract, offering insights into the impact of contracts on social justice. In turn, the third chapter addresses the inner core of the contract: validity and liability. This allows readers at all levels to identify the similarities and differences between contracts from different eras and different parts of the world, which will also benefit those pursuing comparative research in related fields. Chapters four and five offer a philosophical exploration of contract history in ancient China, and analyze key aspects including human nature and ethical justice.

Presenting diverse contributors from legal, academic, and practitioner sectors, this book illustrates how the distinctions between international and domestic law are falling away in the context of security, particularly in the responses to terrorism, and explores the implications of these dramatic shifts in the normative order. Fundamental changes in the powers of the state and the rights of populations have accelerated since the globalized response to 9/11, creating effects that spread beyond borders and operate in a new, as yet under-conceptualized space. Although these altered practices were said to be in response to exceptional circumstances - a response to terrorism - they have become increasingly established in an altered baseline norm. This book explores the (inter)national implications of exceptional legal efforts to protect states' domestic space in the realm of security.

Government accountability is generally accepted to be an essential feature of modern democratic society; while others might turn a blind eye to corruption and wrongdoing, those who value accountability would instead shine a bright light on it. In this context, it is common to hear claims of accountability 'deficit' (a particular mechanism or area is lacking in accountability) and 'overload' (a particular mechanism or area over-delivers on accountability). Despite the frequency of references to these concepts, their precise content remains undeveloped. This book offers an explanation, as well as a framework for future exploration, of these concepts. It highlights the difficulty of defining a benchmark that might be used to measure the amount of accountability in a particular situation, and also the challenge of mapping out accountability mechanisms as a system. While difficult, if accountability is indeed a foundational concept underpinning our system of government, there is merit in meeting these challenges head-on.

Paradigmatic transition is the idea that ours is a time of transition between the paradigm of modernity, which seems to have exhausted its regenerating capacities, and another, emergent time, of which so far we have seen only signs. Modernity as an ambitious and revolutionary sociocultural paradigm based on a dynamic tension between social regulation and social emancipation, the prevalent dynamic in the sixteenth century, has by the twenty-first century tilted in favour of regulation, to the determent of emancipation. The collapse of emancipation into regulation, and hence the impossibility of thinking about social emancipation consistently, symbolizes the exhaustion of the paradigm of modernity. At the same time, it signals the emergence of a new paradigm or new paradigms. This updated 2020 edition is written for students taking law and globalization courses, and political science, philosophy and sociology students doing optional subjects.

The competition for limited health care resources is intensifying. We urgently need an acceptable method for deciding how they should be allocated. But the goods that health care produces are of very different kinds. Health care can extend the lives of children and of older people. It can make it possible for a person to walk, when without health care that person would be permanently bedridden; and it can reduce the pain and distress of people who are terminally ill. How can we possibly decide which of these - and many more - diverse achievements of health care are more deserving than others? We need a common unit by which we might be able to measure these very different goods. The Quality-Adjusted Life Year, or QALY, is the most developed proposal for such a unit of measure. In this book a distinguished team of ethicists and economists defend the core of the QALY proposal: that health care resources should be used so as to produce more years of life, of the highest possible quality. This leads to a discussion of such fundamental questions as whether all lives are of equal value, whether health care should be allocated on the basis of need and whether the QALY approach incorporates an adequate account of fairness or justice. The result is the most thorough account yet of the ethical issues raised by the use of the QALY as a basis for allocating health care resources.

In this second volume of studies on 12th-century canon law, Charles Duggan emphasises the European context of the emergence of the ius novum, the new law of the Western church, based on specific cases and informed by the academic learning of the schools where canon law was taught as a scholarly discipline. The themes range from marriage and forgery to regional applications, with studies on decretals to Hungary and Archbishop Roger of York respectively, Italian marriage decretals, the impact of the Becket dispute, litigation involving English secular magnates and the crown culminating with a perceptive analysis of the role of judges delegate in the formation and application of the new principles of law and jurisprudence which the practice of local courts and appeals to the papacy brought into being. Significant light is thrown on English collectors, judges, and secular and ecclesiastical litigants. Wherever possible, calendars are provided, often with more accurate identifications and dating, and based on the fullest manuscript sources.

Ethnomethodologists and Conversation Analysts have always been interested in the study of law and legal institutions and there is now a large body of empirical studies, representing a range of analytic traditions in each field. This collection introduces this literature and the research questions pursued by ethnomethodologists and conversation analysts, in an accessible form to a general audience in the inter-disciplinary field of law and society studies.

This book is an account of the concept of equality from the perspective of both theory and practice, and presents methods of quantifying values. It considers both arguments and evidence, and tackles equality in its different forms, including economic equality, education, equality before the law, equality of opportunity, and gender equality. The book shows that inequality is a profoundly moral question, noting that there are good practical reasons for its adoption. It presents a consideration of classical theories from Aristotle to Hume, as well as contemporary approaches such as those offered by Rawls, Haidt, Temkin, and Parfit. It also contemplates issues such as the naturalistic fallacy, and considers what is different about the Goleman view of moral sensitivity and the ethical personality. The array of evidence includes the impact of climate and various plants such as sugar and cotton on the slave trade, the concept of Gaia, Darwinism, sex inequality, personality, culture, psychological issues, and the quantification of ethics. The book concludes with some practical suggestions for improving equality. It aims to raise awareness of the ways in which equality can be understood, and achieved. It will be relevant to students and scholars in philosophy, human rights, and law.

The legal system affects behavior not just directly, by imposing sanctions, but also indirectly, by producing information on how people behave. For example, internal company documents exposed during litigation will help third parties assess whether they trust a company and want to keep doing business with it. The law therefore affects behavior by shaping reputations. Drawing on economics, communications, and a nascent multidisciplinary literature on reputation, Roy Shapira highlights how reputation works, and how information from the courtroom affects the court of public opinion, with a particular emphasis on the role of the media. By fleshing out interactions between law and reputation, Shapira corrects common misperceptions about the ability of market forces to discipline corporate behavior and adds to timely, ongoing debates such as the desirability of heightened pleading standards or mandatory arbitration clauses. Law and Reputation should interest any scholar who invokes notions of market discipline in their work.

Privacy is gravely endangered in the digital age, and we, the digital citizens, are its principal threat, willingly surrendering it to avail ourselves of new technology, and granting the government and corporations immense power over us. In this highly original work, Firmin DeBrabander begins with this premise and asks how we can ensure and protect our freedom in the absence of privacy. Can-and should-we rally anew to support this institution? Is privacy so important to political liberty after all? DeBrabander makes the case that privacy is a poor foundation for democracy, that it is a relatively new value that has been rarely enjoyed throughout history-but constantly persecuted-and politically and philosophically suspect. The vitality of the public realm, he argues, is far more significant to the health of our democracy, but is equally endangered-and often overlooked-in the digital age.

This book discusses the impact of war on the complex interactions between various actors involved in justice: individuals and social groups on the one hand and 'the justice system' (police, judiciary and professionals working in the prison service) on the other. It also highlights the emergence of new expectations of justice among these actors as a result of war. Furthermore, the book addresses justice practices, strategies for coping with the changing circumstances, new forms of negotiation, interactions, relationships between populations and the formal justice system in this specific context, and the long-term effects of this renegotiation. Ten out of the eleven chapters focus on Belgian issues, covering the two world wars in equal measure. Belgium's diverse war experiences in the twentieth century mean that a study of the country provides fascinating insights into the impact of war on the dynamics of 'doing justice'. The Belgian army fought in both world wars, and the vast majority of the population experienced military occupation. The latter led to various forms of collaboration with the enemy, which required the newly reinstalled Belgian government to implement large-scale judicial processes to repress these 'antipatriotic' behaviours, in order to restore both its authority and legitimacy and to re-establish social peace.

The papers collected in this volume fall into three main groups. Those in the first group are concerned with the origin and early development of the idea of natural rights. The author argues here that the idea first grew into existence in the writings of the 12th-century canonists. The articles in the second group discuss miscellaneous aspects of medieval law and political thought. They include an overview of modern work on late medieval canon law. The final group of articles is concerned with the history of papal infallibility, with especial reference to the tradition of Franciscan ecclesiology and the contributions of John Peter Olivi and William of Ockham.

There have been extraordinary developments in the field of neuroscience in recent years, sparking a number of discussions within the legal field. This book studies the various interactions between neuroscience and the world of law, and explores how neuroscientific findings could affect some fundamental legal categories and how the law should be implemented in such cases. The book is divided into three main parts. Starting with a general overview of the convergence of neuroscience and law, the first part outlines the importance of their continuous interaction, the challenges that neuroscience poses for the concepts of free will and responsibility, and the peculiar characteristics of a "new" cognitive liberty. In turn, the second part addresses the phenomenon of cognitive and moral enhancement, as well as the uses of neurotechnology and their impacts on health, self-determination and the concept of being human. The third and last part investigates the use of neuroscientific findings in both criminal and civil cases, and seeks to determine whether they can provide valuable evidence and facilitate the assessment of personal responsibility, helping to resolve cases. The book is the result of an interdisciplinary dialogue involving jurists, philosophers, neuroscientists, forensic medicine specialists, and scholars in the humanities; further, it is intended for a broad readership interested in understanding the impacts of scientific and technological developments on people's lives and on our social systems.

This book intends to contribute to the consolidation of the new approach to lawmaking that has taken place in the last 20 years in legal philosophy and legal theory, spreading to other legal fields, especially criminal law. This new legislation science focusing on criminal problems has triggered a growing interest in the field, a dynamic which has led to a long-needed convergence of disciplines such as administrative law, criminal law, criminology, political science, sociology and, of course, legal philosophy to contribute to a more rational decision-making process for the construct of criminal laws. With the intention to continue on with the building of a solid "Criminal Legislation Science", this work presents scholars, lawmakers and students various emblematic approaches to enrich the discussion about different and promising tools and theoretical frameworks.

This second volume of essays by Professor Kelley takes the study of history as its starting point, then extends explorations into adjacent fields of legal, political, and social thought to confront some of the larger questions of the modern human sciences. The first group of papers examine the historiography of the Protestant Reformation and then of the Romantic and Victorian periods; the last section focuses on the legal tradition and its interpretation in relation to social and cultural, as well as historical thought, in the period from the Renaissance to the French Revolution. Throughout, the author's interest is to analyse how people at different times have viewed their past - and reconstructed and utilised it in the service of their present concerns.

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.

On behalf of Professor Hugh Brady, Director and Senior Fellow, The Flag Research Center at the University of Texas School of Law, "Flags, Color, and the Legal Narrative: Public Memory, Identity, and Critique (Springer 2021) has been selected as the recipient of our Gherardi Davis Prize is presented for a significant contribution to vexillological research for the year 2021. This work was selected because of its breadth and depth in examining flags as meaningful transmitters of significant symbolic information concerning the origins, culture, self-image, and values of a society. We believe it represents a signal achievement in the study of flags that sets a new standard for research in the field." The Flag Research Center, founded in 1962, is dedicated to furthering knowledge and advancing understanding of the human need to create and use symbols to express political, cultural, and social ideals through flags and flag-related material culture. The book deals with the identification of "identity" based on culturally specific color codes and images that conceal assumptions about members of a people comprising a nation, or a people within a nation. Flags narrate constructions of belonging that become tethered to negotiations for power and resistance over time and throughout a people's history. Bennet (2005) defines identity as "the imagined sameness of a person or social group at all times and in all circumstances". While such likeness may be imagined or even perpetuated, the idea of sameness may be socially, politically, culturally, and historically contested to reveal competing pasts and presents. Visually evocative and ideologically representative, flags are recognized symbols fusing color with meaning that prescribe a story of unity. Yet, through semiotic confrontation, there may be different paths leading to different truths and applications of significance. Knowing this and their function, the book investigates these transmitted values over time and space. Indeed, flags may have evolved in key historical periods, but contemporaneously transpire in a variety of ways. The book investigates these transmitted values: Which values are being transmitted? Have their colors evolved through space and time? Is there a shift in cultural and/or collective meaning from one space to another? What are their sources? What is the relationship between law and flags in their visual representations? What is the shared collective and/or cultural memory beyond this visual representation? Considering the complexity and diversity in the building of a common memory with flags, the book interrogates the complex color-coded sign system of particular flags and their meanings attentive to a complex configuration of historical, social and cultural conditions that shift over time. Advance Praise for Flags, Color, and the Legal Narrative "In an epoch of fragmentation, isolation and resurgent nationalism, the flag is waved but often forgotten. The flag, its colors, narratives, shape and denotations go without saying. The red flag over China, the Star-Spangled Banner, the Tricolore are instantly recognisable and over determined, representing a people, a nation, a culture, languages, legacies, leaders. In this fabulous volume flags are revealed as concentrated, complex, chromatic assemblages of people, place and power in and through time. It is in bringing a multifocal awareness of the modes and meanings of flag and color in public representations that is particular strength. Editors Anne Wagner and Sarah Marusek have gathered critical thinkers from the North and South, East and West, to help know the essential and central - yet often forgotten and not seen - work of flags and color in narratives of nation, conflict, struggle and law. A kaleidoscopic contribution to the burgeoning field of visual jurisprudence, this volume is essential to comprehending the ocular machinery through which power makes, and is seen to make, the world."Kieran Tranter, Chair of Law, Technology and Future, Faculty of Law, Queensland University of Technology, Australia "This comprehensive volume of essays could not be arriving at a more opportune time. The combined forces of climate change, inequality, and pandemic are causing instability and painful recognitions of our collective uncertainties about nationhood and globalism. In the United States, where I am writing these few lines, our traditional red/white/blue flag has been collapsed into two colors: Red and Blue. While these colors have semiotically deep texts, the division of the country into these two colors began with television stations designing how to report the vote count in the 2000 presidential election year creating "red" and "blue" parties and states. The colors stuck and have become customary. We Americans are told all the time by pundits that we are a deeply divided nation, as proven by unsubtle colored maps. To a statistician, we are a Purple America, though the color is unequally distributed. White, the color of negotiation and peace is rarely to be found. To begin to approach understanding the problems flagged in my brief account requires the insight of multiple disciplines. That is what Wagner and Marusek, wonderful scholars in their own work, have assembled as editors -- a conversation among scholars at the forefront of thinking about how flags and colors represent those who claim them thus exemplifying how to resist simple explanations and pat answers. The topic is just too important."Christina Spiesel, Senior Research Scholar in Law, Yale Law School; Adjunct Professsor of Law, Quinnipiac University School of Law, USA "Visuals, such as symbols and images, in addition to conventional textual forms, seem to have a unique potential for the study of a collective identity of a community and its traditions, as well as its narratives, and at the same time, in the expression of one's ideas, impressions, and ideologies in a specific socio-political space. Visual analysis thus has become a well-established domain of investigations focusing on how various forms of text-external semiotic resources, such as culturally specific symbols, including patterns and colors, make it possible for scholars to account for and thus demystify discursive symbols in a wider social and public space. Flags, Identity, Memory: Critiquing the Public Narrative through Colors, as an international and interdisciplinary volume, is a unique attempt to demystify the thinking, values, assumptions and ideologies of specific nations and their communities by analyzing their choice of specific patterns and colors represented in a national flag. It offers a comprehensive and insightful range of studies of visual and hidden discursive processes to understand social narratives through patterns of colours in the choice of national flags and in turn to understand their semiotic, philosophical, and legal cultures and traditions. Wagner and Marusek provide an exclusive opportunity to reflect on the functions, roles, and limits of visual and discursive representations. This volume will be a uniquely resourceful addition to the study of semiotics of colours and flags, in particular, how nations and communities represent their relationship between ideology and pragmatism in the repository of identity, knowledge and history."Vijay K Bhatia, Chinese University of Hong Kong, Full Professor, Hong Kong "In all societies, colors play a critical function in the realm of symbolism. Nation societies perceive great significance in the colors of flags and national emblems. Colors constitute, in other words, sign systems of national identity. The relation of color codes and their relation to concepts of nationhood and its related narratives is the theme of this marvelous and eye-opening collection of studies. Flags are mini-texts on the inherent values and core concepts that a nation espouses and for this reason the colors that they bear can be read at many levels, from the purely representational to the inherently cultural. Written by experts in various fields this interdisciplinary anthology will be of interest to anyone in the humanities, social sciences, jurisprudence, narratology, political science, and semiotics. It will show how a seemingly decorative aspect of nationhood-the colors on flags-tells a much deeper story about the human condition."Marcel Danesi, University of Toronto, Full Professor of Anthropology, Canada

This book explores critical questions pertaining to the character and content of the "American People" as posited in the US Supreme Court's interpretation of the fundamental law. What exactly is an American? Who or what comprise the People? What are the constitutive sociocultural, political, and economic ordering principles of the American People and society? How does the Court impact the nationalist character and content of law and policy? From a sociocultural, economic, political, and ideological perspective, the Court's singular proclamations as to what the US Constitution means, what is its purpose, and how it is to be perceived and implemented have profound consequences for representational politics and notions of what exactly constitutes the American polity. This book employs a critical, conceptual, and structural approach, critically examining the notion of the People in constitutional discourse, and its impact on government, politics, law, and society in the present.