This book is a sophisticated, detailed, and original examination of the main ideas that have dominated Anglo-American legal philosophy since the Second World War. The author probes such themes as: whether there can be right answers to all disputed law cases; how laws and other rules impact on the practical rationality of actors subject to their authority; whether general principles justifying the law must themselves be thought of as part of the law binding on legal actors; and the possibility of an interpretivist jurisprudence that is continuous with law practice in a given culture.

Advances in the field of Assisted Reproductive Technology (ART) have been revolutionary. This book focuses on the use of ARTs in the context of families who seek to conceive a matching sibling donor as a source of tissue to treat an existing sick child. Such children have been referred to as 'saviour siblings'. Considering the legal and regulatory frameworks that impact on the accessibility of this technology in Australia and the UK, the work analyses the ethical and moral issues that arise from the use of the technology for this specific purpose. The author claims the only justification for limiting a family's reproductive liberty in this context is where the exercise of reproductive decision-making results in harm to others. It is argued that the harm principle is the underlying feature of legislative action in Western democratic society, and as such, this principle provides the grounds upon which a strong and persuasive argument is made for a less-restrictive regulatory approach in the context of 'saviour siblings'. The book will be of great relevance and interest to academics, researchers, practitioners and policy makers in the fields of law, ethics, philosophy, science and medicine.

In recent years,a number of key terms of the criminal law have seemed to defy definition. Scepticism over the possibility of defining basic concepts and identifying general principles has been voiced by both judges and academic commentators. This raises broad issues of theoretical interest, but also touches on such practical concerns as the efforts made by the Law Commission to reform the law as well as wider proposals for the codification of criminal law. Furthermore, the Human Rights Act incorporates a requirement of legality under Article 7 of the ECHR, whose scope is clearly connected to our understanding of how criminal offences are defined. This book undertakes an investigation of the role and scope of definition within the criminal law, set within a wider examination of the nature of legal materials and the diversity of perspectives on law. It offers a fascinating account of how the rules and principles found within legal materials provide opportunities for responding to, rather than merely following the law. In the light of this account, the book takes issue with some of the established views on the roles of judges and academics and, in a series of case studies concerning the definition of theft and changes to the definition of recklessness recently introduced by the House of Lords in R V G , explores the intimate connection between the use of legal materials and the practice of definition. More specific objectives of the book involve providing a more rigorous assessment of the serious challenge made by a 'criticial' perpective on the criminal law; challenging the conventional intellectual apparatus of the criminal law; demonstrating how general theoretical insights on the process of definition can assist with the practical problems of defining criminal offences; clarifying the uses of definition in the work of the judiciary and law reformers; and, determining realistic expectations for the principle of legality within the criminal law.

Considering general philosophical and theoretical questions about the nature, purpose and operation of law as a whole, this book introduces students to contemporary debates in jurisprudence and encourages them to think in a theoretical and critical way about the nature of law, legal reasoning and adjudication. Discussing wider issues of morality, politics and society with reference to legal cases and examples, it provides as broad a perspective on the law as possible. Key features of this textbook include: introductions to each chapter analysis of how jurisprudential issues can arise in everyday life a wide range of cases to ground the theoretical discussion in-depth discussion of the relationship of law to force, morality and politics, as well as of rights, justice and feminist jurisprudence. The text provides a concise treatment of all the major topics typically covered in an undergraduate course on jurisprudence and succinctly explains the arguments for and against the different approaches to the issues that are raised.

Liberal defences of nationalism have become prevalent since the mid-1980's. Curiously, they have largely neglected the fact that nationalism is primarily about land. Should liberals throw up their hands in despair when confronting conflicting claims stemming from incommensurable national narratives and holy texts? Should they dismiss conflicting demands that stem solely from particular cultures, religions and mythologies in favour of a supposedly neutral set of guidelines? Does history matter? Should ancient injustices interest us today? Should we care who reached the territory first and who were its prior inhabitants? Should principles of utility play a part in resolving territorial disputes? Was John Locke right to argue that the utilisation of land counts in favour of its acquisition? And should Western style settlement projects work in favour or against a nation's territorial demands? When and how should principles of equality and equal distribution come into play?

Territorial Rights examines the generic types of territorial claims customarily put forward by national groups as justification for their territorial demands, within the framework of what has come to be known as 'liberal nationalism'. The final outcome is a multifarious theory on the ethics of territorial boundaries that supplies a workable set of guidelines for evaluating territorial disputes from a liberal-national perspective, and offers a common ground for discussion (including disagreement) and for the mediation of claims.

Natural Law, Liberalism, and Morality brings together leading defenders of natural Law and Liberalism for a series of frank and liveley exchanges touching upon critical issues of contemporary moral and political theory. The book is an outstanding example of the fruitful engagement of traditions of thought about fundamental matters of ethics and justice.

Since the Second World War, dignity has increasingly been recognized as an important moral and legal value. Although important examples of dignity-based arguments can be found in western European and North American case law and legal theory, the dignity jurisprudence of the Constitutional Court of South African is widely considered to be the most sweeping in the world. In part, this is related to the unique provisions of the South African Constitution in areas such as socioeconomic rights and allowing dignity to be taken into the sphere of economic justice as well as that of human rights. This book brings together the first sixteen years of constitutional jurisprudence addressing the meaning, role, and reach of dignity in the law of South Africa as a multiracial democracy. The case law is coupled with analysis from a range of selected contributors. The book will therefore be a crucial source for anyone seeking to evaluate dignity, whether in law or in human life more broadly.

Are companies, churches, and states genuine agents? Or are they just collections of individual agents that give a misleading impression of unity? This question is important, since the answer dictates how we should go about explaining the behaviour of these entities and whether we should treat them as responsible and accountable in the manner of individuals. Group Agency offers a new approach to that question and is relevant, therefore, in a range of fields from philosophy to law, politics, and the social sciences. Christian List and Philip Pettit take the line that there really are group or corporate agents, over and above the individual agents who compose them, and that a proper social science and a proper approach to law, morality, and politics have to take account of this fact. Unlike some earlier defences of group agency, their account is entirely unmysterious in character and, despite not being technically difficult, is grounded in cutting-edge work in social choice theory, economics, and philosophy.

In No Place for Ethics, Hill argues that contemporary judicial review by the Supreme Court rests on its mistaken positivist understanding of law-law simply because so ordered-as something separate from ethics. To assert any relation between the two is to contaminate both, either by turning law into an arm of ethics, or making ethics an expression of law. To address this mistake, Hill contends that an understanding of natural law theory provides the basis for a constitutive relation between ethics and law without confusing their distinct role in answering the basic question, how should I behave in society? To secure that relation, the Court has an overriding responsibility when carrying out its review to do so with reference to normative ethics from which the US Constitution is derived and to which it is accountable. While the Constitution confirms, for example, the liberty interests of individuals, it does not originate those interests which have their origin in human rights that long preceded it. Essential to this argument is an appreciation of ethics as objective and normatively based on principles, like that of justice and truth that ought to inform human behavior at its very springs. Applied in an analysis of five major Supreme Court cases, this appreciation of ethics reveals how wrongly decided these cases are.

This special issue of Studies in Law, Politics, and Society aims to foster a dialogue that is inclusive, constructive, and innovative in order to lay the basis for evaluating the usefulness and impact of cultural expertise in modern litigation. It investigates the scope of cultural expertise as a new socio-legal concept that broadly concerns the use of social sciences in connection with rights and the solution of conflicts. While the definition of cultural expertise is new, the conflicts it applies to are not, and these range from criminal law to civil law, including international human rights. In this special issue, socio-legal scientists with interdisciplinary backgrounds scrutinize the applicability of the notion of cultural expertise in Europe and the rest of the World. Cases include murder, female genital mutilation, earthquake claims, Islamic law, underage marriages, child custody, adoption, land rights, and asylum. The authors debate on a variety of themes, such as legal pluralism, ethnicity, causal determinism, reification of culture, and the "culturalization" of defendants. The volume concludes with an overview of the ethical implications of the definition of cultural expertise and suggestions for a way forward.

Fifty years before his death in 2013, Nelson Mandela stood before Justice de Wet in Pretoria's Palace of Justice and delivered one of the most spectacular and liberating statements ever made from a dock. In what came to be regarded as "the trial that changed South Africa", Mandela summed up the spirit of the liberation struggle and the moral basis for the post-Apartheid society. In this blistering critique of Apartheid and its perversion of justice, Mandela transforms the law into a sword and shield. He invokes it while undermining it, uses it while subverting it, and claims it while defeating it. Wise and strategic, Mandela skilfully reimagines the courtroom as a site of visibility and hearing, opening up a political space within the legal. This volume returns to the Rivonia courtroom to engage with Mandela's masterful performance of resistance and the dramatic core of that transformative event. Cutting across a wide-range of critical theories and discourses, contributors reflect on the personal, spatial, temporal, performative, and literary dimensions of that constitutive event. By redefining the spaces, institutions and discourses of law, contributors present a fresh perspective that re-sets the margins of what can be thought and said in the courtroom.

Sovereignty marks the boundary between politics and law. Highlighting the legal context of politics and the political context of law, it thus contributes to the internal dynamics of both political and legal systems. This book comprehends the persistence of sovereignty as a political and juridical concept in the post-sovereign social condition. The tension and paradoxical relationship between the semantics and structures of sovereignty and post-sovereignty are addressed by using the conceptual framework of the autopoietic social systems theory. Using a number of contemporary European examples, developments and paradoxes, the author examines topics of immense interest and importance relating to the concept of sovereignty in a globalising world. The study argues that the modern question of sovereignty permanently oscillating between de iure authority and de facto power cannot be discarded by theories of supranational and transnational globalized law and politics. Criticising quasi-theological conceptualizations of political sovereignty and its juridical form, the study reformulates the concept of sovereignty and its persistence as part of the self-referential communication of the systems of positive law and politics. The book will be of considerable interest to academics and researchers in political, legal and social theory and philosophy.

Presenting feminist readings of texts from the legal philosophical and jurisprudential canon, the papers collected here offer an interdisciplinary and critical challenge to established modes of reading law. Feminist approaches to law usually take the form of either critical engagements with legal doctrine, legal concepts and ideas, or critical assessments of the effects that specific areas of law have upon the lives of women. This collection, however, although rooted in feminist legal scholarship, takes the established canon of legal texts as the object of inquiry. Taking as their common starting point the fact that legal texts are plural and open to multiple readings, all the contributions in this collection offer subversive, but supplementary, interpretations of the legal canon. In this respect, however, they do not merely sustain an array of feminist styles and theories of reading; revealing and re-appropriating the plural space of legal interpretation, they seek to open a hitherto unexplored arena for a feminist politics of law. Feminist Encounters with Legal Philosophy is a thoroughly researched interdisciplinary collection that will interest students and scholars of Law, Philosophy, and Feminism.

Challenging the usual introductions to the study of law, A Critical Introduction to Law argues that law is inherently political and reflects the interests of the few even while presenting itself as neutral. This fully revised and updated fourth edition provides contemporary examples to demonstrate the relevance of these arguments in the twenty-first century. The book includes an analysis of the common sense of law; the use of anthropological examples to gain external perspectives of our use and understanding of law; a consideration of central legal concepts, such as order, rules, property, dispute resolution, legitimation and the rule of law; an examination of the role of law in women's subordination and finally a critique of the effect of our understanding of law upon the wider world. Clearly written and admirably suited to provoking discussions on the role of law in our contemporary world, this book is ideal for undergraduate and postgraduate students reading law, and will be of interest to those studying legal systems and skills courses, jurisprudence courses, and law and society.

In early modern Europe the law developed as one of the few non-religious orderings of civil life. Its separation from religion was, however, never complete and we see the contest continued today not only in the campaigns of religious fundamentalists of the right, but also in the clains of critical intellectuals to reshape government institutions and the legal apparatus in accordance with moral principle - whether of indivudual autonomy or communitarian self-determination. In Anti-Lawyers, David Saunders traces the story of this unresolved conflict from Hobbes' Leviathan to the American law texts of today, and discusses how we might regard today's moral critics of government and law in the light of the early modern effort to disengage spiritual discipline from secular government and conscience from law. Separate sections look at major figures in English common law in the Early Modern period, French and German absolutism and jurisprudence as it is taught in the American law texts of today.

The meaning of an expression resides not in the expression itself but in the experience of a person's engagement with it. Meaning will be different not only to different people but also to the same person at different times. This book offers a way of attending to these different meanings. This way (or method) is a version of a trans-cultural activity that Richard Dawson calls attunement. The activity of attunement involves a movement of self-adjustment to a language, which a person transforms in her or his use of it. Consciously performing the activity can enable understanding of the processes by which we constitute ourselves and others when we use a language. This directly connects to the topic justice, which is concerned with constituting appropriate selves and relations. Justice as Attunement engages with a wide range of texts - legal, literary, economic, philosophical, among others - and illuminates many useful and fascinating connections between them. There is a sense in which this book transcends disciplinary boundaries, for, in addition to students and scholars of law, literature, economics, and philosophy, it is written to a general reader who is interested in reflecting on and doing justice to their experiences in life.

'I swear to tell the truth, the whole truth, and nothing but the truth' we say in a court of law. 'In a court of law, the truth is precisely what we will not say', says Lacan. 'If God is dead, everything is permitted', writes Dostoyevsky. 'If God is dead, everything is prohibited', responds Lacan. 'I think, therefore I am', reasons Descartes. 'I am where I do not think', concludes Lacan. What are we to make of Lacan's inversions of these mottos? And what are the implications for the legal system if we take them seriously? This book puts the legal subject on the couch and explores the incestuous relationship between law and desire, enjoyment and transgression, freedom and subjection, ethics and atheism. The process of analysis problematizes fundamental tenets of the legal system, leading the patient to rethink long-held beliefs: terms like 'guilt' and 'innocence', 'truth' and 'lies', 'reason' and 'reality', 'freedom' and 'responsibility', 'cause' and 'punishment', acquire new and surprising meanings. By the end of these sessions, the patient is left wondering, along with Freud her analyst, whether 'it is not psychology that deserves the mockery but the procedure of judicial enquiry'. A unique study on the nexus of Law and Psychoanalysis, this book will interest students and scholars of both subjects, as well as general readers looking to explore this perverse and fascinating relationship.

This volume presents a collection of essays on objectivity in legal discourse. Has law a distinctive type of objectivity? Is there one specific type of legal objectivity or many, depending on the observatory language utilized? Is objectivity fit for law? The analyses in the various contributions show that the Cartesian paradigm of objectivity is not relevant to the current legal discourse, and new forms of legal objectivity are revealed instead. Each essay, in its distinctive way, analyses the strong commitment of law to objectivity, shedding light on the controversies that surround it.

Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features (e.g., liberty, health, autonomy, security, non-subordination, the absence of oppression, human dignity, the discovery of truth, the acquisition of knowledge, self-realization, human excellence, civic dignity, cultural diversity and choice, recognition of cultural identity, intercultural dialogue, participation in democratic self-government, being subject only to legitimate rule) and practical considerations (e.g., efficacy, the least restrictive alternative, chilling effects). The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of the principled arguments. Finally, it argues that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue (e.g., reciprocity, equality, and mutual respect). The Open Access version of this book, available at https://doi.org/10.4324/9781315714899, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

This volume presents a new approach to today's tax controversies, reflecting that debates about taxation often turn on the differing worldviews of the debate participants. For instance, a central tension in academic tax literature - which is filtering into everyday discussions of tax law - exists between 'mainstream' and 'critical' tax theorists. This tension results from a clash of perspectives: Is taxation primarily a matter of social science or of social justice? Should tax policy debates be grounded in economics or in critical race, feminist, queer, and other outsider perspectives? To capture and interrogate what often seems like a chasm between the different sides of tax debates, this collection comprises a series of pairs of essays. Each pair approaches a single area of controversy from two different perspectives - with one essay usually taking a 'mainstream' perspective and the other a 'critical' perspective. In writing their contributions, the authors read and incorporated reactions to each other's essays and paid specific attention to the influence of perspective on both the area of controversy and their contribution to the debate. With contributions from leading mainstream and critical tax scholars, this volume takes the first step toward bridging the gap between these differing perspectives on tax law and policy.

This book identifies and follows a strand in the history of thought ranging from codified statutes to looser social expectations that uses particulars, and more specifically examples, to produce norms. Much intellectual history takes ancient Greece as a point of departure. But the strand of thought followed here finds its home, if not its origin, in Rome. 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 the law that is derived from the concrete. And although 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 traces the limits of this understanding. Tracing the role of exemplarity from Rome through to its influence on 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. "

"Drawing on a variety of disciplines, Levit contends that both society generally and some feminists in particular have exaggerated the evidence of difference between males and females and have overlooked the far more prevalent similarities. . . . A readable, thoughtful, and controversial volume."
"--Choice"

"Interesting and important. . . . It should be compulsory reading in preparation for law study to stimulate and inspire individuals aspiring to learn to construct a society more egalitarian than we now know."
"--Judge Norma L. Shapiro, Jurist"

"The Gender Line marks feminism's coming of age. Levit tackles the issue of gender not just as it affects women, but as it constrains everyone. Her book brings new insight into the meaning of masculinity and femininity and their role in society."
"--June Carbone, Santa Clara Law School"

Despite tremendous advances in civil rights, we live in a world where the sexes remain sharply segregated from birth to death: in names, clothing, social groupings, and possessions; in occupations, civic association, and domestic roles. Gender separatism, so pervasive as to be almost invisible, permeates the fabric of our daily social routines. Preferring a notion of gender that is fluid and contextual, and denying that separatism is inevitable, Nancy Levit dismantles the myths of gender essentialism Drawing on a wealth of interdisciplinary data regarding the biological and cultural origins of sex differences, Levit provides a fresh perspective on gendered behaviors and argues the need for careful cultivation of new relations between the sexes.

With its focus particularly on men, The Gender Line offers an insightful overview of theconstruction of gender and the damaging effects of its stereotypes. Levit analyzes the ways in which law legitimizes the social segregation of the sexes through legal decisions regarding custody, employment, education, sexual harassment, and criminal law. In so doing, she illustrates the ways in which men's and women's oppressions are intertwined and how law molds the very definition of masculinity.

Applying feminist methodology to the doctrine of feminism itself, Levit artfully demonstrates that gender separatism infects even our contemporary views of feminism. Levit asks questions that have been too long been unspoken--those that lie at the core of the feminist project, yet threaten its very foundations. Revealing masculinity as both a privileged and a victimized condition, she calls for a step forward, past the bounds of contemporary feminism and its conflicts, toward a more egalitarian and inclusive feminism. This brand of feminism would reshape traditional masculinity, invite men into feminist dialogue, and claim men as political allies.

American Supreme Court jurisprudence in the area of religious freedom has been, for the most part, predicated upon a form of liberal theory commonly known as "procedural liberalism." Faith on Trial explains how the Court's reliance on this theoretical basis hampers its ability to adequately address the reality of religion as a pluralistic social institution. David E. Guinn provides a detailed critique of procedural liberalism by thinkers such as Charles Taylor and Iris Marion Young-tapping into the idea of "deep diversity" suggested by Taylor-through the development of a new theoretical model that reconceptualizes Supreme Court jurisprudence. This challenging work demonstrates a practical way to resolve the problems inherent in much existing religious freedom jurisprudence and calls for a reformation of Supreme Court thinking on the First Amendment.

Against jurisprudential reductions of Spinoza's thinking to a kind of eccentric version of Hobbes, this book argues that Spinoza's theory of natural right contains an important idea of absolute freedom, which would be inconceivable within Hobbes' own schema. Spinoza famously thought that the universe and all of the beings and events within it are fully determined by their causes. This has led jurisprudential commentators to believe that Spinoza has no room for natural right - in the sense that whatever happens by definition has a 'right' to happen. But, although this book demonstrates how Spinoza constructs a system in which right is understood as the work of machines, by fixing right as determinate and invariable, Stephen Connolly argues that Spinoza is not limiting his theory. The universe as a whole is capable of acting only in determinate ways but, he argues, for Spinoza these exist within a field of infinite possibilities. In an analysis that offers much to ongoing attempts to conceive of justice post-foundationally, the argument of this book is that Spinoza opens up right to a future of determinate interventions -as when an engineer, working with already-existing materials, improves a machine. As such, an idea of freedom emerges in Spinoza: as the artful rearrangement of the given into new possibilities. An exciting and original contribution, this book is an invaluable addition, both to the new wave of interest in Spinoza's philosophy, and to contemporary legal and political theory.

Conventionally, international legal scholarship concerned with norm conflicts focuses on identifying how international law can or should resolve them. This book adopts a different approach. It focuses on identifying those norm conflicts that law cannot and should not resolve. The book offers an unprecedented, controversial, yet sophisticated, argument in favour of construing such irresolvable conflicts as legal dilemmas. Legal dilemmas exist when a legal actor confronts a conflict between at least two legal norms that cannot be avoided or resolved. Addressing both academics and practitioners, the book aims to identify the character and consequences of legal dilemmas, to distil their legal function within the sphere of international law, and to encourage serious theoretical and practical investigation into the conditions that lead to a legal dilemma. The first part proposes a definition of legal dilemmas and distinguishes the term from numerous related concepts. Based on this definition, the second part scrutinises international law's contemporary norm conflict resolution and accommodation devices in order to identify their limited ability to resolve certain kinds of norm conflicts. Against the background of the limits identified in the second part, the third part outlines and evaluates the book's proposed method of dealing with legal dilemmas. In contrast to conventional approaches that recommend dealing with irresolvable norm conflicts by means of non liquet declarations, judicial law-making, or a balancing test, the book's proposal envisions that irresolvable norm conflicts are dealt with by judicial and sovereign actors in a complementary fashion. Judicial actors should openly acknowledge irresolvable conflicts and sovereign actors should decide with which norm they will comply. The book concludes with the argument that analysing various aspects of international law through the concept of a legal dilemma enhances its conceptual accuracy, facilitates more legitimate decision-making, and maintains its dynamic responsiveness.