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.

This anthology highlights the theoretical foundations as well as the various applications of Behavioural Law and Economics in European legal culture. By the same token, it fosters the dialogue between European and American Law and Economics scholars. The traditional neo-classical microeconomic theory explains human behaviour by using Rational Choice. According to this model, people tend to maximize the difference between expected utility and cost ("expected utility theory"). This theory includes three assumptions: (1) unbounded rationality, (2) unbounded self-interest, and (3) unbounded willpower. Behavioural Economics questions these assumptions and endeavours to render economic analysis more realistic by underpinning it with psychological insights. In recent years, the influence of Behavioural Economics on the Economic Analysis of Law has gained momentum. Behavioural Law and Economics generates a better theoretical understanding of legal phenomena and offers a multitude of applications in legislation and legal adjudication. This volume is testament to the growing and thriving Law and Economics movement in Europe. The European Law and Economics community has steadily grown and the yearly Law and Economics Conference at the law faculty of the University of Lucerne has successfully become a guiding star in the vast sky of Law and Economics.

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.

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.

This book provides a philosophical critique of legal relations between the EU and 'distant strangers' neither located within, nor citizens of, its Member States. Starting with the EU's commitment in Articles 3(5) and 21 TEU to advance democracy, human rights, and the rule of law in 'all its relations with the wider world', Ganesh examines in detail the salient EU and international legal materials and thereafter critiques them in the light of a theory of just global legal relations derived from Kant's philosophy of right. In so doing, Ganesh departs from comparable Kantian scholarship on the EU by centering the discussion not around the essay Toward Perpetual Peace, but around the Doctrine of Right, Kant's final and comprehensive statement of his general theory of law. The book thus sheds light on areas of EU law (EU external relations law, standing to bring judicial review), public international law (jurisdiction, global public goods) and human rights (human rights jurisdiction), and also critiques the widespread identification of the EU as a Kantian federation of peace. The thesis on which this book was based was awarded the 2020 Rene Cassin Thesis Prize (English section).

Comparative scholarship on judicial review has paid a lot of attention to the causal impact of politics on judicial decision-making. However, the slower-moving, macro-social process through which judicial review influences societal conceptions of the law/politics relation is less well understood. Drawing on the political science literature on institutional change, The Politico-Legal Dynamics of Judicial Review tests a typological theory of the evolution of judicial review regimes - complexes of legitimating ideas about the law/politics relation. The theory posits that such regimes tend to conform to one of four main types - democratic or authoritarian legalism, or democratic or authoritarian instrumentalism. Through case studies of Australia, India, and Zimbabwe, and a comparative chapter analyzing ten additional societies, the book then explores how actually-existing judicial review regimes transition between these types. This process of ideational development, Roux concludes, is distinct both from the everyday business of constitutional politics and from changes to the formal constitution.

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.

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.

This book is an updated and revised edition of Fundamentals of Legal Argumentation published in 1999. It discusses new developments that have taken place in the past 15 years in research of legal argumentation, legal justification and legal interpretation, as well as the implications of these new developments for the theory of legal argumentation. Almost every chapter has been revised and updated, and the chapters include discussions of recent studies, major additions on topical issues, new perspectives, and new developments in several theoretical areas. Examples of these additions are discussions of recent developments in such areas as Habermas' theory, MacCormick's theory, Alexy's theory, Artificial Intelligence and law, and the pragma-dialectical theory of legal argumentation. Furthermore it provides an extensive and systematic overview of approaches and studies of legal argumentation in the context of legal justification in various legal systems and countries that have been important for the development of research of legal argumentation. The book contains a discussion of influential theories that conceive the law and legal justification as argumentative activity. From different disciplinary and theoretical angles it addresses such topics as the institutional characteristics of the law and the relation between general standards for moral discussions and legal standards such as the Rule of Law. It discusses patterns of legal justification in the context of different types of problems in the application of the law and it describes rules for rational legal discussions. The combination of the sound basis of the first edition and the discussions of new developments make this new edition an up-to-date and comprehensive survey of the various theoretical influences which have informed the study of legal argumentation. It discusses salient backgrounds to this field as well as major approaches and trends in the contemporary research. It surveys the relevant theoretical factors both from various continental law traditions and common law countries.

This book is an investigation into Carl Schmitt's critical thinking regarding the alleged deficiencies he identified in modern liberalism. Noted jurist, constitutional scholar, and a fierce critic of liberalism and pluralism, Schmitt mounted a sustained attack on the defects of the Weimar constitution between 1916 and 1934, contending that what Germany needed was a strong decisive leader to maintain political unity. This book provides a concise and clear explanation of Schmitt's disagreements with other constitutional scholars, from his time as a university graduate up until Hitler's rise to power. Although these disagreements were couched in legal terminology, they represented political criticisms that went directly to the heart of modern democracy, culminating in Schmitt's defence of the Reich against Prussia in the constitutional crisis of 1932. The book concludes with a strenuous defence of modern liberalism in response to the Schmittian critique. Thus, this book is not just an exploration of Carl Schmitt's work, but a response to one of the harshest attacks on the modern liberal state, and a blueprint for a renewal of democracy, pluralism, and the rule of law.

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.

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.

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.

This book delves into legal and ethical concerns over the increased weaponization of outer space and the potential for space-based conflict in the very near future. Unique to this collection is the emphasis on questions of ethical conduct and legal standards applicable to military uses of outer space. No other existing publication takes this perspective, nor includes such a range of interdisciplinary expertise. The essays included in this volume explore the moral and legal issues of space security in four sections. Part I provides a general legal framework for the law of war and peace in space. Part II tackles ethical issues. Part III looks at specific threats to space security. Part IV proposes possible legal and diplomatic solutions. With an expert author team from North American and Europe, the volume brings together academics, military lawyers, military space operators, aerospace industry representatives, diplomats, and national security and policy experts. The experience of this team provides a collection unmatched in any academic publication broaching even some of these issues and will be required reading for anyone interested in war and peace in outer space.

First published in 1917 (Part 1) and 1918 (Part 2), with a second edition in 1946, this is the first English translation of Santi Romano's classic work, L'ordinamento giuridico (The Legal Order). The main focus of The Legal Order is the notion of institution, which Romano considers to be both the core and distinguishing feature of law. After criticising accounts of the nature of law centred on notions of rule, coercion or authority, he offers a compelling conception, not merely of law as an institution, but of the institution as 'the first, original and essential manifestation of law'. Romano advances a definition of a legal institution as any group who share rules within a bounded context: for example, a family, a firm, a factory, a prison, an association, a church, an illegal organisation, a state, the community of states, and so on. Therefore, this understanding of legal institutionalism at the same time provides a ground-breaking theory of legal pluralism whereby 'there are as many legal orders as institutions'. The acme of a jurisprudential current long overlooked in the Anglophone environment (Romano's work is highly regarded in France, Germany, Spain and South America, as well as in Italy), The Legal Order not only proposes what Carl Schmitt described as a 'very significant theory'. More importantly, it offers precious insights for a thorough rethinking of the relationship between law and society in today's world.

More has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship - too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different - it is not to rework these already-rehashed ideas, but to reject them entirely. Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions.

This book pursues a strand in the history of thought - ranging from codified statutes to looser social expectations - that uses particulars, more specifically examples, to produce norms. Much intellectual history takes ancient Greece as a point of departure. But the practice of exemplarity is historically rooted firmly in ancient Roman rhetoric, oratory, literature, and law - genres that also secured its transmission. Their pragmatic approach results in a conceptualization of politics, social organization, philosophy, and law that is derived from the concrete. It is commonly supposed that, with the shift from pre-modern to modern ways of thinking - as modern knowledge came to privilege abstraction over exempla, the general over the particular - exemplarity lost its way. This book reveals the limits of this understanding. Tracing the role of exemplarity from Rome through to its influence on the fields of literature, politics, philosophy, psychoanalysis and law, it shows how Roman exemplarity has subsisted, not only as a figure of thought, but also as an alternative way to organize and to transmit knowledge.

This text looks at rulemaking in one of the most important areas of economic life - financial services. The book has three main aims: first, to build a jurisprudential and linguistic analysis of rules and interpretation, drawing out the implication of these analyses and developing quality proposals for how rules could be used as instruments of regulation. Second, it interprets that analysis and set of proposals with an empirical study of the formation and use of rules in a particular regulatory system - financial services, and third, it evaluates the nature of the rulemaking process. The authors main case study, examining the use of self-regulation in the financial services sector, complements the detailed analysis of rule formation and uses.

The 'reasonable person' is used to assess the acceptability of behaviour in many areas of the law including criminal law and accident law. However the reasonable person has also attracted substantial criticism from egalitarian critics and feminists insofar as it presupposes contested notions of 'normal' behaviour and may discriminate against certain classes of defendant. Rethinking the Reasonable Person systematically investigates whether there are deeper foundations to these criticisms and discusses how the legal standard might be reconstructed in a more egalitarian way.

Over the course of the twentieth century, democracies demonstrated an uncanny ability to win wars when their survival was at stake. As this book makes clear, this success cannot be explained merely by superior military equipment or a particular geographical advantage. Instead, it is argued that the legal frameworks imbedded in democratic societies offered them a fundamental advantage over their more politically restricted rivals. For democracies fight wars aided by codes of behaviour shaped by their laws, customs and treaties that reflect the wider values of their society. This means that voters and the public can influence the decision to wage and sustain war. Thus, a precarious balance between government, parliament and military leadership is the backbone of any democracy at war, and the key to success or failure. Beginning with the sixteenth- and seventeenth-century writings of Alberico Gentili and Hugo Grotius, this book traces the rise of legal concepts of war between states. It argues that the ideas and theories set out by the likes of Gentili and Grotius were to provide the bedrock of western democratic thinking in wartime. The book then moves on to look in detail at the two World Wars of the twentieth century and how legal thinking adapted itself to the realities of industrial and total war. In particular it focuses upon the impact of differing political ideologies on the conduct of war, and how combatant nations were frequently forced to challenge core beliefs and values in order to win. Through a combination of history and legal philosophy, this book contributes to a better understanding of democratic government when it is most severely tested at war. The ideas and concepts addressed will resonate, both with those studying the past, and current events.

The Prophet Muhammad's reported traditions have evolved significantly to affect the social, cultural, and political lives of all Muslims. Though centuries of scholarship were spent on the authentication and trustworthiness of the narrators, there has been less study focused on the contents of these narratives, known as Hadith or Sunnah, and their corroboration by the Qur`an. This book is a first step in a comprehensive attempt to contrast Hadith with the Qur`an in order to uncover some of the unjust practices by Muslims concerning women and gender issues. Using specific examples the author helps the reader appreciate and understand the magnitude of the problem. It is argued that the human rights and the human development of Muslim women will not progress in a meaningful and sustainable manner until the Hadith is re-examined in a fresh new approach from within the Islamic framework, shifting the discourse in understanding Islam from a dogmatic religious law to a religio-moral rational worldview. The author argues that such re-examination requires the involvement of women in order to affirm their authority in exegetical and practical leadership within Muslim societies, and she encourages Muslim women to stand up for their rights to effect change in understanding the role of sunnah in their own life.