Western liberal constitutionalism has expanded recently, with, in East Asia, the constitutional systems of Japan, South Korea and Taiwan based on Western principles, and with even the socialist polities of China and Vietnam having some regard to such principles. Despite the alleged universal applicability of Western constitutionalism, however, the success of any constitutional system depends in part on the cultural values, customs and traditions of the country into which the constitutional system is planted. This book explains how the values, customs and traditions of East Asian countries are Confucian, and discusses how this is relevant to constitutional practice in the region. The book outlines how constitutionalism has developed in East Asia over a long period, considers different scholarly work on the ease or difficulty of integrating Western constitutionalism into countries with a Confucian outlook, and examines the prospects for such integration going forward. Throughout, the book covers detailed aspects of Confucianism and the workings of constitutions in practice.

Arguing about Law introduces philosophy of law in an accessible and engaging way. The reader covers a wide range of topics, from general jurisprudence, law, the state and the individual, to topics in normative legal theory, as well as the theoretical foundations of public and private law. In addition to including many classics, Arguing About Law also includes both non-traditional selections and discussion of timely topical issues like the legal dimension of the war on terror.

The editors provide lucid introductions to each section in which they give an overview of the debate and outline the arguments of the papers, helping the student get to grips with both the classic and core arguments and emerging debates in:

• the nature of law
• legality and morality
• the rule of law
• the duty to obey the law
• legal enforcement of sexual morality
• the nature of rights
• rights in an age of terror
• constitutional theory
• tort theory.

Arguing About Law is an inventive and stimulating reader for students new to philosophy of law, legal theory and jurisprudence.

This challenging book on jurisprudence begins by posing questions in the post-modern context,and then seeks to bridge the gap between our traditions and contemporary situation. It offers a narrative encompassing the birth of western philosophy in the Greeks and moves through medieval Christendom, Hobbes, the defence of the common law with David Hume, the beginnings of utilitarianism in Adam Smith, Bentham and John Stuart Mill, the hope for enlightenment with Kant, Rousseau, Hegel and Marx, onto the more pessimistic warnings of Weber and Nietzsche. It defends the work of Austin against the reductionism of HLA Hart, analyses the period of high modernity in the writings of Kelsen, Hart and Fuller, and compares the different approaches to justice of Rawls and Nozick. The liberal defence of legality in Ronald Dworkin is contrasted with the more disillusioned accounts of the critical legal studies movement and the personalised accounts of prominent feminist writers.

Clarence Thomas is one of the most vilified public figures of our day. To date, however, his legal philosophy has received only cursory treatment. First Principles provides a portrait of Thomas based not on the justice's caricatured reputation, but on his judicial opinions and votes, his scholarly writings, and his public speeches.

The paperback edition includes a provocative new Afterword by the author bringing the book up to date by assessing Justice Thomas's performance, and the reaction to his decisions, during the last five years.

This text argues that justice is a virtue which everyone shares - a function of personal character and not just of government or economic planning. It uses examples from Plato to Ivan Boesky, to document how we live and how we feel.

Focusing on the intersection of politics and law in six western European countries and in two supra-national bodies, the contributors here aim to debunk the myth that judges are merely "la bouche de la loi" and analyze similiarities in policy-making of the judiciaries from one nation to the next.

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.

This book explores the relationship between law and geography, particularly in relation to globalisation - of law, commerce, environmental change and society - which renders relations between the local and the global more significant. The book is structured according to conceptual frames - boundaries, land, property, nature, identity (persons, peoples and places), culture and time, and knowledge.

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.

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.

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.

In the Commonwealth,the principle of legal professional privilege has been treated as almost sacrosanct and in consequence, derogations from it have been rare. The traditional view is that, despite resulting unfairness, the rule must be absolute in order to achieve its stated goals. This view is challenged here through an examination of the structure of and exceptions to the privilege. Auburn argues that the claims made of the rule in the past have been overstated and that the privilege is more robust than widely assumed. Being dependent on patterns of client behaviour, it can accommodate change, while still fulfilling its essential function. Having examined the theory, structure and main derogations from the privilege, the author asserts that we should be more sceptical of the claims made of the privilege, and in appropriate circumstances should give more weight to the values underlying the disclosure of evidence. This thoughtful analysis presents a new approach to the issue of legal professional privilege. It offers a thorough exploration of the principles underlying the privilege and takes a Commonwealth-wide approach, covering the law in England, Australia, Canada, New Zealand and South Africa, as well as drawing on relevant principles from European and United States law. Contents 1. Conceptual and Historical Introduction Part A: THEORETICAL FOUNDATIONS 2. Emerging Common Law Right 3. Privilege Under the European Convention on Human Rights 4. Confidentiality 5. Disclosure 6. Structure of the Privilege - General Theory 7. Structure of the Privilege - Application PART B: PRACTICAL APPLICATIONS 8. Crime-fraud Exception 9. Criminal Exculpatory Evidence 10. Loss of Privilege Based on Intent and Disclosure [Waiver] 11. Fairness Based Loss of Privilege [Waiver] 12. Indadvertent Disclosure 13. Past and Future Directions

Nearly half of all privately owned firearms in the world are in American hands. The U.S. homicide rate is 6 times higher than the average of all developed countries, and more than three times higher than any individual country. Half of all homicides are committed with a firearm. Gun advocates claim that the high rate of private gun ownership does not contribute to this; some even argue that murder rates would be lower if only more people carried guns to defend themselves. Pro gun control advocates find the correlation between number of guns and gun violence an obvious one - and that it should be the starting point for discussion about gun control. Both sides think their cases are strong, and have created a political stalemate. Can the truth of these views be evaluated rationally and dispassionately? Hugh Lafollette argues the gun control debate is more complex than advocates on either side acknowledge. It requires resolving moral and legal questions about the nature of and limitations on rights, as well as the responsibility of government to protect citizens from risk. It requires assessing claims about the right to bear arms, as well as the right to be secure from harm caused by guns. Empirical findings must be considered-about the role of guns in causing harm, the degree to which private ownership of guns can protect innocent civilians from attacks by criminals, whether the government should be constrained by a well-armed citizenry, and the degree to which laws seriously limiting access to guns can be effectively enforced. Lafollette carefully sorts through all these conceptual, moral, and empirical claims. He concludes that all things considered, the U.S. does need more gun control than we have. He then proposes an indirect strategy for decreasing harm from firearms-requiring all gun owners to have liability insurance (something the NRA actually encourages) similar to that of car owners. Lafollette argues that this approach could reduce gun violence without the problem of government intrusion. Painstakingly fair and historically informed, the book is mainly designed for use in applied ethics and public policy courses, showcasing how one might approach a difficult topic with care and even-handedness in order to construct a rational argument. In Defense of Gun Control sorts through the conceptual, moral, and empirical claims to fairly assess arguments for and against serious gun control.

John Marshall Harlan, grandson of the first Supreme Court Justice of the same name, served on the Court from 1955 until his retirement and death in 1971. An articulate and forceful critic of the expansive civil liberties doctrines and constitutional trends of the period, Harlan is considered one of the most scholarly jurists ever to have served on the Supreme Court. To date, however, there exists no book-length biography or analysis of his judicial and constitutional philosophy.

Tinsley Yarbrough, a biographer of Supreme Court Justice Hugo Black, Judge Frank Johnson, and Judge J Waties Waring, is writing the first biography of Supreme Court Justice Harlan. Drawing on a thorough examination of the John Marshall Harlan Papers archive at Princeton, interviews with Harlan's family, clerks, and acquaintances, and inter-chambers memoranda and related archival material, Yarbrough will provide a fascinating portrait of Harlan's life, career and the evolution of his judicial and constitutional philosophy. He will give special attention to Harlan's approach to constitutional issues such as the relationship of the Bill of Rights to states, the nature and scope of freedom of expression, the reach of congressional power over civil rights, the right to privacy, the rights of suspects and defendants, modern trends in equal protection doctrine, and the extent to which private activities are subject to constitutional limitations. Throughout his analysis, Yarbrough will consider the possible connections between Harlan's private life and his jurisprudence.

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.

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.

Since it appeared in 1971, John Rawls's "A Theory of Justice" has become a classic. The author has now revised the original edition to clear up a number of difficulties he and others have found in the original book.

Rawls aims to express an essential part of the common core of the democratic tradition--justice as fairness--and to provide an alternative to utilitarianism, which had dominated the Anglo-Saxon tradition of political thought since the nineteenth century. Rawls substitutes the ideal of the social contract as a more satisfactory account of the basic rights and liberties of citizens as free and equal persons. "Each person," writes Rawls, "possesses an inviolability founded on justice that even the welfare of society as a whole cannot override." Advancing the ideas of Rousseau, Kant, Emerson, and Lincoln, Rawls's theory is as powerful today as it was when first published.

Kasper Lippert-Rasmussen here poses the question: "Is affirmative action morally (un)justifiable?" As a phrase that frequently surfaces in major headlines, affirmative action is a highly controversial and far-reaching issue, yet most of the recent scholarly literature surrounding the topic tends to focus on defending one side or another in a particular case of affirmative action. Lippert-Rasmussen instead takes a wide-angle view, addressing each of the prevailing contemporary arguments for and against affirmative action. In his introduction, he proposes an amended definition of affirmative action and considers what forms, from quotas to outreach strategies, may fall under this revised definition. He then analyzes the strengths and weaknesses of each position, relative to each other, and applies recent discussions in political philosophy to assess if and how each argument might justify different conclusions given different cases or philosophical frameworks. Each chapter investigates an argument for or against affirmative action. The six arguments for it consist of compensation, anti-discrimination, equality of opportunity, role model, diversity, and integration. The five arguments against it are reverse discrimination, stigma, mismatch, publicity, and merit. Lippert-Rasmussen also expands the discussion to include affirmative action for groups beyond the prototypical examples of African Americans and women, and to consider health and minority languages as possible criteria for inclusion in affirmative action initiatives. Based on the comparative strength of anti-discrimination and equality of opportunity arguments, Making Sense of Affirmative Action ultimately makes a case in favor of affirmative action; however, its originality lies in Lippert-Rasmussen's careful exploration of moral justifiability as a contextual evaluative measure and his insistence that complexity and a comparative focus are inherent to this important issue.

The past twenty years have witnessed a surge in behavioral studies of law and law-related issues. These studies have challenged the application of the rational-choice model to legal analysis and introduced a more accurate and empirically grounded model of human behavior. This integration of economics, psychology, and law is breaking exciting new ground in legal theory and the social sciences, shedding a new light on age-old legal questions as well as cutting edge policy issues.
The Oxford Handbook of Behavioral Economics and Law brings together leading scholars of law, psychology, and economics to provide an up-to-date and comprehensive analysis of this field of research, including its strengths and limitations as well as a forecast of its future development. Its 29 chapters organized in four parts. The first part provides a general overview of behavioral economics. The second part comprises four chapters introducing and criticizing the contribution of behavioral economics to legal theory. The third part discusses specific behavioral phenomena, their ramifications for legal policymaking, and their reflection in extant law. Finally, the fourth part analyzes the contribution of behavioral economics to fifteen legal spheres ranging from core doctrinal areas such as contracts, torts and property to areas such as taxation and antitrust policy.

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.

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.

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.

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.

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. "