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Two fish are swimming in a pond. 'Do you know what?' the fish asks his friend. 'No, tell me.' 'I was talking to a frog the other day. And he told me that we are surrounded by water!' His friend looks at him with great scepticism: 'Water? Whats that? Show me some water!' International lawyers often find themselves focused on the practice of the law rather than the underlying theories. This book is an attempt to stir up 'the water' that international lawyers swim in. It analyses a range of theoretical approaches to international law and invites readers to engage with different ways of legal thinking in order to familiarize themselves with the water all around us, of which we hardly have any perception. The main aim of this book is to provide interested scholars, practitioners, and students of international law and other disciplines with an introduction to various international legal theories, their genealogies, and possible critiques. By providing an analytical approach to international legal theory, the book encourages readers to enhance their sensitivity to these different approaches and to consider how the presuppositions behind each theory affect analysis, research, and practice in international law. International Law Theories is intended to assist students, scholars, and practitioners in reflecting more generally about how knowledge is formed in the field.
Originalism as Faith presents a comprehensive history of the originalism debates. It shows how the doctrine is rarely used by the Supreme Court, but is employed by academics, pundits and judges to maintain the mistaken faith that the Court decides cases under the law instead of the Justices' personal values. Tracing the development of the doctrine from the founding to present day, Eric J. Segall shows how originalism is used by judges as a pretext for reaching politically desirable results. The book also presents an accurate description and evaluation of the late Justice Scalia's jurisprudence and shows how he failed to practice the originalism method that he preached. This illuminating work will be of interest to lawyers, law students, undergraduates studying the Court, law professors and anyone else interested in an honest discussion and evaluation of originalism as a theory of constitutional interpretation, a political weapon, and an article of faith.
Judge Richard A. Posner's work on the economics of public law is a critical component of the interaction between the new law and economics movement and public choice theory. It exemplifies the parallel influence that these two important intellectual movements have had on the current understanding of legal institutions. Together with an insightful introduction by Francesco Parisi, this volume brings together his most important contributions on areas such as: * the economics of constitutional law and legislation * the economics of criminal law * the economics of labour law and employment discrimination * the economics of antitrust. The Economics of Public Law will be essential reading for economists, lawyers and judges alike.
The pioneering work of Judge Richard Posner has brought to light the broad relevance of economics to virtually all areas of law. During the last three decades, Judge Posner has provided seminal contributions to the development of an overarching economic theory of law, with applications including traditional legal subjects, such as torts and contracts, as well as non-standard topics, such as his study of primitive law and ancient customs. This selection of Posner's essays reveals the importance of economic efficiency as a driving force in the formation of private law. The rigorous and insightful introduction by Francisco Parisi discusses Posner's unparalleled influence on the evolution of law and economics and the understanding of the economic foundations of private law. In particular he discusses: * anthropology and the emergence of law * tort law * contract law * family law * the economics of privacy. The Economics of Private Law will be essential reading for economists, lawyers and judges alike.
In 1956, ICJ judge Philip Jessup highlighted the gaps between private and public international law and the need to adapt the law to border-crossing problems. Today, sixty years later, we still ask what role transnational law can play in a deeply divided, post-colonial world, where multinationals hold more power and more assets than many nation states. In searching for suitable answers to pressing legal problems such as climate change law, security, poverty and inequality, questions of representation, enforcement, accountability and legitimacy become newly entangled. As public and private, domestic and international actors compete for regulatory authority, spaces for political legitimacy have become fragmented and the state's exclusivist claim to be law's harbinger and place of origin under attack. Against this background, transnational law emerges as a conceptual framework and method laboratory for a critical reflection on the forms, fora and processes of law making and law contestation today.
In "Philosophy of Law," Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law--an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Marmor argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction--whether the legal domain can be explained in terms of something else, more foundational in nature.
In addition to exploring the major issues in contemporary legal thought, "Philosophy of Law" provides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law.
Presenting a critique of conventional methods in comparative law, this book argues that, for comparative law to qualify as a discipline, comparatists must reflect on how and why they make comparisons. Gunter Frankenberg discusses not only methods and theories, but also the ethical implications and the politics of comparative law in bringing out the different dimensions of the discipline. Comparative Law as Critique offers various approaches that turn against the academic discourse of comparative law, including analysis of a widespread spirit of innocence in terms of method, and critique of human rights narratives. It also examines how courts negotiate differences between cases regarding Muslim veiling. The incisive critiques and comparisons in this book will be of essential reading for comparatists working in legal education and research, as well as students of comparative law and scholars in comparative anthropology and social sciences.
The idea of a cultural defense in criminal law is often ridiculed as "multiculturalism run amok ". To allow someone charged with a crime to say "this is my culture " as an excuse for their action seems to open the door to cultural relativism, to jeopardize the protection of fundamental rights, and to undermine norms of individual responsibility. Many scholars, however, insist that cultural evidence is appropriate, indeed essential, for the fair operation of the criminal law. The criminal law is society's most powerful tool for regulating behaviour, and just for that reason we apply strong safeguards to ensure that criminal sanctions are applied in a fair way. When it comes to individuals, we want our rules for judging responsibility and punishment to track the actual blameworthiness of the specific individual being prosecuted for a specific action in the past. Cultural evidence may help improve our judgements of individual blameworthiness and desert; indeed, cultural evidence might even be necessary if the practice of punishing individuals is to be legitimate and equitable. According to its proponents, the use of cultural evidence when judging individual blameworthiness is a natural extension of the logic of existing criminal law doctrines regarding defences, and of the logic of current philosophical theories of responsibility and agency. This volume brings together scholars of both criminal law and philosophy to rigorously assess these ideas. Each of the chapters addresses a different dimension of the issue, from a range of perspectives, with varying degrees of sympathy or scepticism regarding cultural defences. The result is an important and original contribution to the literature. It explores why cultural diversity raises distinctive challenges in the criminal law context, not found in other domains of the multiculturalism debate, while also exploring how this particular context raises fundamental issues of agency and responsibility that are at the heart of broader debates in legal, social and political philosophy.
Smith's "Lectures on Jurisprudence, " originally delivered at the
University of Glasgow in 1762-1763, present his "theory of the
rules by which civil government ought to be directed." The chief
purpose of government, according to Smith, is to preserve justice;
and "the object of justice is security from injury." The state must
protect the individual's right to his person, property, reputation,
and social relations.
Can we talk about 'the people' as an agent with its own morally important integrity? How should we understand ownership of public property by 'the people'? Nili develops philosophical answers to both of these questions, arguing that we should see the core project of a liberal legal system - realizing equal rights - as an identity-grounding project of the sovereign people, and thus as essential to the people's integrity. He also suggests that there are proprietary claims that are intertwined in the sovereign people's moral power to create property rights through the legal system. The practical value of these ideas is illustrated through a variety of real-world policy problems, ranging from the domestic and international dimensions of corruption and abuse of power, through transitional justice issues, to the ethnic and religious divides that threaten liberal democracy. This book will appeal to political theorists as well as readers in public policy, area studies, law, and across the social sciences.
Emmanuel Levinas' re-formulation of subjectivity, responsibility
and the good has radically influenced post-structuralist thought.
Political and legal theory, however, have only marginally profited
from his moral philosophy. Levinas' theme of one's infinite
responsibility for the other has often been romanticized by some
advocates of multiculturalism and natural justice.
In this volume, political theorists, philosophers and legal scholars critically engage with this idealization of Levinas' ethics. The authors show that his crucial formulation of the idea of 'the other in me' does not offer a quick cure for today's nationalist, racist and religious divides. Nor does his notion of anarchic responsibility provide immediate relief for the agony of dealing with matters of life and death. The rebelliousness of Levinas' thought is rediscovered here and used to challenge preconceptions of social, legal and individual responsibility.
This volume of essays celebrates the influence that Robert Feenstra has had on South African law - both directly as result of his work having been cited in numerous judgements of the courts and indirectly through the academic and practical contributions of his students and the many other South African lawyers who have found guidance and inspiration in his work.;(First published as Acta Juridica 2000)
Learning Conflict of Laws is designed to teach aspiring litigators. Contemporary fact patterns bring doctrines to life. Hypotheticals and simulations prepare students for the practice of law. The book, written by experienced teachers, is organized into 23 chapters, with each chapter covering a specific topic. Chapters are structured so that they can be taught with or without court opinions, depending upon the amount of attention that the teacher wishes to allocate to the topic. Court opinions are used only to illustrate the application of a doctrine rather than to introduce or to teach that doctrine. The premise of the book is to provide students with the basic doctrine so that class time can be spent applying that doctrine to hypotheticals that surface the doctrine's complexity.
The law has traditionally been regarded as a set of rules and institutions. In this thoughtful series of essays, James Boyd White urges a fresh view of the law as an essentially literary, rhetorical, and ethical activity. Defining and elaborating his conception, he artfully bridges the fields of jurisprudence, literature, philosophy, history, and political science. The result, a new approach that may change the way we perceive the legal process, will engage not only lawyers and law students but anyone interested in the relationship between ethics, persuasion, and community. White's essays, though bound by a common perspective, are thematically varied. Each of these pieces makes eloquent and insightful reading. Taken as a whole, they establish, by triangulation, a position from which they all proceed: a view of poetry, law, and rhetoric as essentially synonymous. Only when we perceive the links between these processes, White stresses, can we begin to unite the concerns of truth, beauty, and justice in a single field of action and expression.
Legal Reason describes and explains analogical reasoning, the distinctive feature of legal argument. It challenges the prevailing view that analogical reasoning is a logically flawed, defective form of deductive reasoning. Drawing on work in epistemology and cognitive psychology, the book shows that analogical reasoning in the law is the same as that used by everyone routinely in ordinary life, and that it is a valid form of reasoning, derived from the innate human capacity to recognize the general in the particular. The use of analogical reasoning in law is dictated by the nature of law, which calls for the application of general rules to particular facts. Critiques of the first edition of the book are addressed directly and objections answered in a new chapter. Written for scholars, students, and persons interested in law, Legal Reason is written in accessible prose, with examples drawn from the law and everyday experience.
This title examines the political role of courts in new democracies in Latin America and Africa, focusing on their ability to hold political power-holders accountable when they act outside their constitutionally defined powers. The book also issues a warning: there are problems inherent in the current global move towards strong constitutional government, where increasingly strong powers are placed in the hands of judges who themselves are not made accountable.
This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view (grounded in Kelsen, Hobbes, Locke, Rousseau and others), and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law.
Perhaps more than any other scholar, Michael Moore has argued that there are deep and necessary connections between metaphysics, morality, and law. Moore has developed every contour of a theory of criminal law, from philosophy of action to a theory of causation. Indeed, not only is he the central figure in retributive punishment but his moral realist position places him at the center of many jurisprudential debates. Comprised of essays by leading scholars, this volume discusses and challenges the work of Michael Moore from one or more of the areas where he has made a lasting contribution, namely, law, morality, metaphysics, psychiatry, and neuroscience. The volume begins with a riveting contribution by Heidi Hurd, wherein she takes an unadorned and unabashed look at the man behind this monumental body of work, full of both triumphs and sadness. A number of essays focus on Moore's view of the purpose and justification of the criminal law, specifically his endorsement of retributivism and legal moralism. The book then addresses Moore's work in the various aspects of the general part of the criminal law, including Moore's position on how to understand criminal acts for double jeopardy purposes, Moore's claim that accomplice liability is superfluous, and Moore's views about the culpability of negligence, as well as the relationship between that view and proximate causation. Furthermore, the subject of defenses in criminal law is addressed, including self-defense, and also the intersection of psychiatry, psychology, cognitive neuroscience, and the criminal law. Also discussed are features of morality, and Moore's work in general jurisprudence. Finally, Moore concludes the volume with an essay that defends and delineates the features of his views.
A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning.
Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.
"Those who value individual freedom should reassess the place of the individual within the legal system as a whole. It is no longer a question of defending this or that particular freedom. . . . It is a question of deciding whether individual freedom is compatible in principle with the present system centered on . . . legislation."--Bruno Leoni, from the introductionThe greatest obstacle to rule of law in our time, contends the author of this thought-provoking work, is the problem of overlegislation. In modern democratic societies, legislative bodies are increasingly usurping functions that were and should be exercised by individuals or groups rather than government. The result is an unwieldy surfeit of laws and regulations that by their sheer volume stifle individual freedom.Bruno Leoni (1913-1967) was an attorney and Professor of Legal Theory and the Theory of the State at the University of Pavia, Italy.Arthur Kemp is Professor Emeritus of Economics, at Claremont McKenna College.
Explore the legalities and pitfalls of forensic social work!Forensic Social Work: Legal Aspects of Professional Practice, Second Edition examines the professional specialty of forensic social work which involves testifying in court as an expert witness, investigating cases of possible criminal conduct, and assisting the legal system in such issues as child custody disputes, divorce, child support, juvenile delinquency, spouse or child abuse, and placing individuals in mental hospitals. As a student or professional social worker, you will explore a variety of ethical and legal issues, such as malpractice, licensing, credentialing, marketing for forensic clients, and presenting effective courtroom testimony. Current and fact-filled, this new edition discusses the origins of forensic social work and offers implications for future practice.New material in this edition includes a chapter on how to establish a forensic social work practice, with information on how to bring in clients, generate new referrals and make other important contacts. Another new chapter expands on the first edition's discussion of implanted memory versus recovered memory and the ways that social workers use and often misuse this information. A third new chapter examines credentialing requirements for forensic social work. Forensic Social Work details legal conflicts you may face and offers suggestions on how to deal with these situations. Rich with examples, some aspects of forensic social work that you will learn about are: separating the role of the expert witness from the role of the fact witness while testifying understanding the motivations, payments, and positive incentives for entering the field of forensic social work avoiding malpractice lawsuits by understanding the criteria for liability guidelines for action when laws and ethics collide preparing for litigation duty-to-warn laws writing reports and contracts for the litigious society using the problem-oriented (SOAP) record distinguishing implanted memory from recovered memory and understanding how witnesses and social workersmay misuse remembered information Complete with a glossary, case examples, and information on how to obtain clients, new referrals, and other contacts, Forensic Social Work gives you a thorough look at the profession of forensic social work. You will explore the legal and ethical issues that come with this profession, learn the credentials needed to become a forensic social worker, and discover how to adequately market yourself in the field. Forensic Social Work will prepare you for the circumstances that may arise and help you to professionally and successfully overcome future challenges.
Torture and Moral Integrity tackles a concrete moral problem that has been hotly debated by governments, scholars, and the media: the morality of interrogational torture. It discusses multiple types of torture with great philosophical acuity and seeks to explain why interrogational torture and other types of torture are always and everywhere morally wrong. At the same time, it rigorously plumbs the general structure of morality and the intricacies of moral conflicts and probes some of the chief grounds for the moral illegitimacy of various modes of conduct. It defends a deontological conception of morality against the subtle critiques that have been mounted over the past few decades by proponents of consequentialism. Kramer's recommendations concerning the legal consequences of the perpetration of torture by public officials or private individuals, for example, are based squarely on his more abstract accounts of the nature of torture and the nature of morality. His philosophical reflections on the structure of morality are a vital background for his approach to torture, and his approach to torture is a natural outgrowth of those philosophical reflections.
First published in 1980, Natural Law and Natural Rights is widely heralded as a seminal contribution to the philosophy of law, and an authoritative restatement of natural law doctrine. It has offered generations of students and other readers a thorough grounding in the central issues of legal, moral, and political philosophy from Finnis's distinctive perspective. This new edition includes a substantial postscript by the author, in which he responds to thirty years of discussion, criticism and further work in the field to develop and refine the original theory. The book closely integrates the philosophy of law with ethics, social theory and political philosophy. The author develops a sustained and substantive argument; it is not a review of other people's arguments but makes frequent illustrative and critical reference to classical, modern, and contemporary writers in ethics, social and political theory, and jurisprudence. The preliminary First Part reviews a century of analytical jurisprudence to illustrate the dependence of every descriptive social science upon evaluations by the theorist. A fully critical basis for such evaluations is a theory of natural law. Standard contemporary objections to natural law theory are reviewed and shown to rest on serious misunderstandings. The Second Part develops in ten carefully structured chapters an account of: basic human goods and basic requirements of practical reasonableness, community and 'the common good'; justice; the logical structure of rights-talk; the bases of human rights, their specification and their limits; authority, and the formation of authoritative rules by non-authoritative persons and procedures; law, the Rule of Law, and the derivation of laws from the principles of practical reasonableness; the complex relation between legal and moral obligation; and the practical and theoretical problems created by unjust laws. A final Part develops a vigorous argument about the relation between 'natural law', 'natural theology' and 'revelation' - between moral concern and other ultimate questions.
This introductory book offers a coherent history of twentieth century crime and the law in Britain, with chapters on topics ranging from homicide to racial hate crime, from incest to anarchism, from gangs to the death penalty. Pulling together a wide range of literature, David Nash and Anne-Marie Kilday reveal the evolution of attitudes towards criminality and the law over the course of the twentieth century. Highlighting important periods of change and development that have shaped the overall history of crime in Britain, the authors provide in-depth analysis and explanation of each theme. This is an ideal companion for undergraduate students taking courses on Crime in Britain, as well as a fascinating resource for scholars.
The Fifth Edition offers a comprehensive introduction to legislation and administration in the regulatory state. Importantly, it features new chapters addressing regulation, including constitutional structure, the types of agencies and their tools for statutory implementation under the Administrative Procedure Act, oversight and review of agency action by all three branches, and judicial deference to agency interpretations. The Fifth Edition also updates the book's classic and path-breaking treatment of the theories and practice of statutory interpretation. It devotes expanded attention to a range of textualist theories, dictionary use, and reliance on language and substantive canons, as well as providing the key statutory text as a preface to major cases. And the new edition contains an in-depth introduction to theories of legislation, the legislative process, representational structures, campaign finance, regulation of lobbying, and direct democracy. The Fifth Edition is perfect for 1L Legislation and Legislation-Regulation ("LegReg") courses, and it remains the go-to book for upper level courses.
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