While numerous books and articles examine various aspects either of democratic theory or of specific topics in election law, there is no comprehensive book that provides a detailed and scholarly discussion of the political and democratic theory underpinnings of election law. Election Law and Democratic Theory fills this important gap, as author David Schultz offers a scholarly analysis of the political principles and democratic values underlying election law and the regulation of political campaigns and participants in the United States. The book provides the first full-length examination of the political theories that form the basis for many of the current debates in election law that structure both Supreme Court and scholarly considerations of topics ranging from campaign finance reform, voting rights, reapportionment, and ballot access to the rights of political parties, the media, and other players in the system. It challenges much of the current debate in election law and argues for more discussion and development of a democratic political theory to support and guide election law jurisprudence.

What are the requirements for a just response to criminal wrongdoing? Drawing on comparative and empirical analysis of existing models of global practice, this book offers an approach aimed at restricting the current limitations of criminal justice process and addressing the current deficiencies. Putting restoration squarely alongside other aims of justice responses, the author argues that only when restorative questions are taken into account can institutional responses be truly said to be just. Using the three primary jurisdictions of Australia, New Zealand and Canada, the book presents the leading examples of restorative justice practices incorporated in mainstream criminal justice systems from around the world. In conclusion, the work provides a fresh insight into how today's criminal law might develop in order to bring restoration directly into the mix for tomorrow. This book will be of interest to undergraduates, postgraduate researchers and lecturers, as well as lawyers who work in the field of criminal law, criminologists, social scientists and philosophers interested in ideas of wrongdoing and criminal justice responses to criminal offending.

This book contains a series of essays discussing the uses of precedent as a source of law and a basis for legal arguments in nine different legal systems, representing a variety of legal traditions. Precedent is fundamental to law, yet theoretical and ideological as well as legal considerations lead to its being differently handled and rationalised in different places. Out of the comparative study come the six theoretical and synoptic essays that conclude the volume.

This book illustrates the deep roots of natural law doctrines in America's political culture. Originally published in 1931, the volume shows that American interpretations of natural law go to the philosophical heart of the American regime. The Declaration of Independence is the preeminent example of natural law in American political thought-it is the self-evident truth of American society. Benjamin Wright proposes that the decline of natural law as a guiding factor in American political behaviour is inevitable as America's democracy matures and broadens. What Wright also chronicled, inadvertently, was how the progressive critique of natural law has opened a rift between and among some of the ruling elites and large numbers of Americans who continue to accept it. Progressive elites who reject natural law do not share the same political culture as many of their fellow citizens. Wright's work is important because, as Leo Strauss and others have observed, the decline of natural law is a development that has not had a happy ending in other societies in the twentieth century. There is no reason to believe it will be different in the United States.

Ubuntu: An African Jurisprudence examines how and why South African courts and law-makers have been using the concept of ubuntu over the last thirty years, reflecting the views of judges and scholars, and above all proclaiming the importance of this new idea for South African legal thinking. Although ubuntu is the product of relations in and between the close-knit groups of a precolonial society, its basic aims - social harmony and caring for others - give it an inherently inclusive scope. This principle is therefore quite capable of embracing all those who constitute the heterogeneous populations of modern states. Included in this work are discussions of two traditional institutions that provide model settings for the realisation of ubuntu: imbizo, national gatherings consulted by traditional rulers to decide matters of general concern, and indaba, a typically African process of making decisions based on the consensus of the group. Courts and law-makers have used imbizo to give effect to the constitutional requirement of participatory democracy, and indaba to suggest an alternative method of decision-making to systems of majority voting. Ubuntu offers something extraordinarily valuable to South Africa and, in fact, to the wider world. Its emphasis on our responsibility for the welfare of our fellow beings acts as a timely antidote not only to the typically rationalist, disinterested system of justice in Western law, but also to the sense of anomie so prevalent in today's society.

Little has been written by lawyers about the effect of provocation on culpability for homicide in English law, yet the question of what our moral attitudes should be towards someone who kills or injures another in anger has been a source of lively debate for centuries. The first philosophical inquiry into the moral character of actions in anger, it seeks to resolve the philosophical controversies generated by setting them in the context of an examination of the place of anger in human nature throughout history. A previously unexplored area of research, this work breaks new ground in its use of historical and philosophical sources not normally linked with criminal law, providing a colorful and fascinating history of the plea of provocation as a defense to murder in England.

The Aboriginal Tent Embassy was established in Canberra in January 1972, when four Aboriginal activists drove from Sydney to Canberra, planted a beach umbrella on the lawns across the road from the Commonwealth Parliament House, and called it an Embassy. They were responding to a speech by conservative Prime Minister William McMahon in which he rejected Aboriginal land rights and reaffirmed the government's commitment to a policy of assimilation. The protestors declared that McMahon's statement effectively relegated indigenous people to the status of 'aliens in our own land', thus as aliens 'we would have an embassy of our own'. The brilliant idea of pitching a Tent Embassy hijacked all the symbolic 'national significance' attached to this small patch of grass by the Australian state and media, and put it to work for radically different purposes. It enacted the kind of land rights that the activists were seeking, and it did so in a way that also drew attention to the living conditions of so many Aboriginal people across Australia. On its twentieth anniversary, the Embassy was permanently established, as part of an on-going struggle for recognition of Aboriginal land rights and sovereignty. It remains today, and celebrates its fortieth anniversary in 2012. This book draws together contributions from an interdisciplinary group of Aboriginal and non-Aboriginal scholar, some of whom were participants in the events that they write about, to examine the social, historical and political significance of the Aboriginal Tent Embassy for Australian society and for the struggle for indigenous rights internationally.

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

Joseph Raz is one of the world's leading philosophers of law, and in his Seeley Lectures he reflects critically on one of the central tenets of ethical thought, the view that values are universal. He concludes that we should try to understand what is and what is not entailed by the universality of values, with such an understanding central to the future hopes of mankind, rather than abandoning the belief altogether. This is a concise humane account of some fundamental questions of social existence.

Building Better Beings presents a new theory of moral responsibility. Beginning with a discussion of ordinary convictions about responsibility and free will and their implications for a philosophical theory, Manuel Vargas argues that no theory can do justice to all the things we want from a theory of free will and moral responsibility. He goes on to show how we can nevertheless justify our responsibility practices and provide a normatively and naturalistically adequate account of responsible agency, blame, and desert.
Three ideas are central to Vargas' account: the agency cultivation model, circumstantialism about powers, and revisionism about responsibility and free will. On Vargas' account, responsibility norms and practices are justified by their effects. In particular, the agency cultivation model holds that responsibility practices help mold us into creatures that respond to moral considerations. Moreover, the abilities that matter for responsibility and free will are not metaphysically prior features of agents in isolation from social contexts. Instead, they are functions of both agents and their normatively structured contexts. This is the idea of circumstantialism about the powers required for responsibility. Third, Vargas argues that an adequate theory of responsibility will be revisionist, or at odds with important strands of ordinary convictions about free will and moral responsibility. Building Better Beings provides a compelling and state-of-the-art defense of moral responsibility in the face of growing philosophical and scientific skepticism about free will and moral responsibility.

The received view on the nature of legal authority contains the idea that a sound account of legitimate authority will explain how a legal authority has a right to command and the addressee a duty to obey. The received view fails to explain, however, how legal authority truly operates upon human beings as rational creatures with specific psychological makeups. This book takes a bottom-up approach, beginning at the microscopic level of agency and practical reason and leading to the justificatory framework of authority. The book argues that an understanding of the nature of legal normativity involves an understanding of the nature and structure of practical reason in the context of the law, and advances the idea that legal authority and normativity are intertwined. This point can be summarised thus: if we are able to understand both how the agent exercises his or her practical reason under legal directives and commands and how the agent engages his or her practical reason by following legal rules grounded on reasons for actions as good-making characteristics, then we can fully grasp the nature of legal authority and legal normativity. Using the philosophies of action enshrined in the works of Elisabeth Anscombe, Aristotle and Thomas Aquinas, the study explains practical reason as diachronic future-directed intention in action and argues that this conception illuminates the structure of practical reason of the legal rules' addressees. The account is comprehensive and enables us to distinguish authoritative and normative legal rules in just and good legal systems from 'apparent' authoritative and normative legal rules of evil legal systems. At the heart of the book is the methodological view of a 'practical turn' to elucidate the nature of legal normativity and authority.

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.

Examining contested notions of indigeneity, and the positioning of the Indigenous subject before and beyond the law, this book focuses upon the animation of indigeneities within textual imaginaries, both literary and juridical. Engaging the philosophy of Jacques Derrida and Walter Benjamin, as well as other continental philosophy and critical legal theory, the book uniquely addresses the troubled juxtaposition of law and justice in the context of Indigenous legal claims and literary expressions, discourses of rights and recognition, postcolonialism and resistance in settler nation states, and the mutually constitutive relation between law and literature. Ultimately, the book suggests no less than a literary revolution, and the reassertion of Indigenous Law. To date, the oppressive specificity with which Indigenous peoples have been defined in international and domestic law has not been subject to the scrutiny undertaken in this book. As an interdisciplinary engagement with a variety of scholarly approaches, this book will appeal to a broad variety of legal and humanist scholars concerned with the intersections between Indigenous peoples and law, including those engaged in critical legal studies and legal philosophy, sociolegal studies, human rights and native title law.

In modern liberal democracies, rights-based judicial intervention in the policy choices of elected bodies has always been controversial. For some, such judicial intervention has trivialized and impoverished democratic politics. For others, judges have contributed to a dynamic and healthy dialogue between the different spheres of the constitution, removed from pressures imposed on elected representatives to respond to popular sentiment. This book provides a critical evaluation of ongoing debates surrounding the judicial role in protecting fundamental human rights, focusing in particular on legislative/executive abridgment of a core freedom in western society - namely, liberty of expression. A range of types of expression are considered, including expression related to electoral processes, political expression in general and sexually explicit forms of expression.

Law, Immunization and the Right to Die focuses on the urgent matter of legal appeals and judicial decisions on assisted death. Drawing on key cases from the United Kingdom and Canada, the book focuses on the problematic paternalism of legal decisions that currently deny assisted dying and questions why the law fails to recognize what many describe as "compassionate motives" for assisted death. When cases are analyzed as discourses that are part of a larger socio-political logic of governance, judicial decisions, it is argued here, reveal themselves as relying on the construction of neoliberal fictions - fictions that are here elucidated with reference to Michel Foucault's theoretical insights on pastoral power and Roberto Esposito's philosophical thesis on immunization. Challenging the socio-political logic of neoliberalism, the issue of assisted dying goes beyond the predominant legal concern with protecting - or immunizing - individuals from one another, in favor of minimal interference. This book calls for a new kind of politics: one that might affirm people and their finitude both more collectively, and more compassionately.

This volume is the first to showcase the interdisciplinary nature of Terror Management Theory, providing a detailed overview of how rich and diverse the field has become since the late 1980s, and where it is going in the future. It offers perspectives from psychology, political science, communication, health, sociology, business, marketing and cultural studies, among others, and in the process reveals how our existential ponderings permeate our behavior in almost every area of our lives. It will interest a wide range of upper-level students and researchers who want an overview of past and current TMT research and how it may be applied to their own research interests.

This volume is the first to showcase the interdisciplinary nature of Terror Management Theory, providing a detailed overview of how rich and diverse the field has become since the late 1980s, and where it is going in the future. It offers perspectives from psychology, political science, communication, health, sociology, business, marketing and cultural studies, among others, and in the process reveals how our existential ponderings permeate our behavior in almost every area of our lives. It will interest a wide range of upper-level students and researchers who want an overview of past and current TMT research and how it may be applied to their own research interests.

Naomi Zack pioneers a new theory of justice starting from a correction of current injustices. While the present justice paradigm in political philosophy and related fields begins from John Rawls's 1970 Theory of Justice, Zack insists that what people in reality care about is not justice as an ideal, but injustice as a correctable ill. For a way to describe real injustice and the society in which it occurs, Zack resurrect Arthur Bentley's key insight that government and law (or political life) is a constant process of contending interest groups throughout society. Bentley's main idea allows for a resolution of the contradiction between formal legal equality for U.S. minorities and post-civil rights practical inequality. Just law and unjust practice co-exist as a fact of political life. The correction of injustice in reality requires applicative justice, in a comparison between those who are treated unjustly with those who are treated justly, and the design of effective measures to equalize such treatment. Zack's theory of applicative justice offers a revolutionary reorientation of society's pursuit of justice, seeking to undo injustice in a practical and fully achievable way.

Professor Robinson provides a new critique of the often neglected problem of classification within the criminal law. He presents a discussion of the present conceptual framework of the law, and offers explanations of how and why formal structures do not match the operation of law in practice. In this scholarly exposition of applied criminal theory, Robinson argues that the current operational structure of the criminal law fails to take account of its different functions. He goes on to suggest new sample codes of criminal conduct and criminal adjudication which mark a real departure from the pragmatic approach which presently dominates code-making. This rounded exploration of the structure of systems of criminal law is an important work for law teachers and policy makers world-wide.

In political theory, the traditional model of state power was that elected officials make policy decisions which are then faithfully executed by a lower cadre of public servants. The complexity of the modern state, however, leaves this model outdated. The vast number of economic and social problems it confronts is such that a great deal of rule-making power is now delegated to a class of civil servants. Yet many political philosophers have not taken this model up, and the field has ignored the important role played by the class of "permanent" state officials-the "deep state" as some call it-in liberal states. In most liberal democracies for example, the central bank is as independent as the supreme court, yet deals with a wide range of economic, social, and political issues. How do these public servants make these policy decisions? What normative principles inform their judgments? In The Machinery of Government, Joseph Heath attempts to answer these questions. He looks to the actual practice of public administration to see how normative questions are addressed. More broadly, he attempts to provide the outlines of a "philosophy of the executive" by taking seriously the claim to political authority of the most neglected of the three branches of the state. Heath both provides a corrective to the prevailing tendency to underestimate the contribution of civil servants to the success of liberal-democratic welfare states, and suggests a more satisfactory account of the principles implicit in public administration.

Law moves, whether we notice or not. Set amongst a spatial turn in the humanities, and jurisprudence more specifically, this book calls for a greater attention to legal movement, in both its technical and material forms. Despite various ways the spatial turn has been taken up in legal thought, questions of law, movement and its materialities are too often overlooked. This book addresses this oversight, and it does so through an attention to the materialities of legal movement. Paying attention to how law moves across different colonial and contemporary spaces, this book reveals there is a problem with common law's place. Primarily set in the postcolonial context of Australia - although ranging beyond this nationalised topography, both spatially and temporally - this book argues movement is fundamental to the very terms of common law's existence. How, then, might we move well? Explored through examples of walking and burial, this book responds to the challenge of how to live with a contemporary form of colonial legal inheritance by arguing we must take seriously the challenge of living with law, and think more carefully about its spatial productions, and place-making activities. Unsettling place, this book returns the question of movement to jurisprudence.

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.

The demand for recognition, responsibility, and reparations is regularly invoked in the wake of colonialism, genocide, and mass violence: there can be no victims without recognition, no perpetrators without responsibility, and no justice without reparations. Or so it seems from law's limited repertoire for assembling the archive after 'the disaster'. Archival and memorial practices are central to contexts where transitional justice, addressing historical wrongs, or reparations are at stake. The archive serves as a repository or 'storehouse' of what needs to be gathered and recognised so that it can be left behind in order to inaugurate the future. The archive manifests law's authority and its troubled conscience. It is an indispensable part of the liberal legal response to biopolitical violence. This collection challenges established approaches to transitional justice by opening up new dialogues about the problem of assembling law's archive. The volume presents research drawn from multiple jurisdictions that address the following questions. What resists being archived? What spaces and practices of memory - conscious and unconscious - undo legal and sovereign alibis and confessions? And what narrative forms expose the limits of responsibility, recognition, and reparations? By treating the law as an 'archive', this book traces the failure of universalised categories such as 'perpetrator', 'victim', 'responsibility', and 'innocence,' posited by the liberal legal state. It thereby uncovers law's counter-archive as a challenge to established forms of representing and responding to violence.

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.

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.