Comparative Legal Reasoning and European Law deals with the use of comparative law in European legal adjudication. It describes the different forms of the use of comparative law in legal reasoning, argumentation and justification in several national legal orders and in European level legal institutions. The book begins with an inquiry into the nature of comparative law as a legal source. After the description of the empirical study it ends to the general theory of European law and several hard cases of European law are examined. The book is intended for students and researchers in European law but it also contains aspects to be taken into account in the practical work in European legal orders and legal institutions by judges and legal practitioners.

This book defines the characteristics of a new discipline that is both legal and scientific: user-friendly legal science.Focusing on how legal tools and practices can be used to achieve objectives in different contexts, it offers an alternative to doctrinal research, law-and-something disciplines, and the traditional interdisciplinary approach.The book not only defines the new discipline's research approach, point of view, theory-building, and research methods, it also shows how it relates to other scientific disciplines and how existing doctrinal legal disciplines can be upgraded into scientific disciplines.

This book offers a new perspective on advance directives through a combined legal, ethical and philosophical inquiry. In addition to making a significant and novel theoretical contribution to the field, the book has an interdisciplinary and international appeal. The book will help academics, healthcare professionals, legal practitioners and the educated reader to understand the challenges of creating and implementing advance directives, anticipate clinical realities, and preparing advance directives that reflect a higher degree of assurance in terms of implementation.

This collection is the multifaceted result of an effort to learn from those who have been educated in an American law school and who then returned to their home countries to apply the lessons of that experience in nations experiencing social, economic, governmental, and legal transition. Written by an international group of scholars and practitioners, this work provides a unique insight into the ways in which legal education impacts the legal system in the recipient's home country, addressing such topics as efforts to influence the current style of legal education in a country and the resistance faced from entrenched senior faculty and the use of U.S. legal education methods in government and private legal practice. This book will be of significant interest not only to legal educators in the United States and internationally, and to administrators of legal education policy and reform, but also to scholars seeking a more in-depth understanding of the connections between legal education and socio-political change.

This insightful research review provides analysis of the most important contemporary work by experts in the economic analysis of legal reasoning and interpretation. It explores a wide range of topics in the field, from constitutional to statutory interpretation, precedent and the interpretation of contracts. The articles discussed raise key questions concerning the optimal construction of institutions, the best approach to judicial decision-making, and the best strategies for statutory and contract drafting. This fascinating review will be valuable to academics interested in legal reasoning, economic analysis and legal philosophy.

Since his death Hohfeld's essays on the concepts of right and duty have been increasingly recognized for their significance as a foundation of thought on analytical jurisprudence. Posthumously collected and published by Yale University Press in 1964, the essays were originally published as two articles in the Yale Law Journal in 1913 and 1917 and are ..".now a standard part of legal thinking." Walker, Oxford Companion to Law 575.This edition is distinguished by the foreword by Arthur L. Corbin, author of the renowned Corbin on Contracts.Wesley Hohfeld [1879-1918] was a professor of law at Stanford Law School and Yale Law School.

John Austin was a towering presence in nineteenth-century English jurisprudence. He lived at the centre of the utilitarian movement in London during the 1820s and 1830s, and became its leading philosopher of law after Bentham's death (1832). Wilfrid E. Rumble's book analyzes Austin's work in its historical context, and shows how much of it remains viable today -- including his conception of analytical jurisprudence, his sharp distinction between law and morality, and his utilitarian theory of resistance to government. The end result is a richer, more nuanced portrait of Austin's legal philosophy than his twentieth-century critics have painted. Doing Austin Justice thus fills a large gap in the literature about this important figure. It will be of substantial interest to jurists, historians of political philosophy, and of the nineteenth century more generally.

It has become increasingly difficult to speak or even think social or legal justice in an age when words have left their moorings. Perhaps images are more stable than words; maybe images and imagery possess a certain viscosity,even a sensory quality, which prevents them from evaporating. This 'maybe' is what this book is about. The contributors to this collection explore the issue of how the Imaginary (images, imagery, imagination) has a role in the production and reproduction of 'visions' of legal and social justice. It argues that 'visions' of justice are inevitably bounded. Boundaries of 'visions' of justice, however, are also 'imaginary'. They emerge within imaginary spaces, and, as they are 'imaginary', they are inherently unstable. The book captures an emerging interest (in the humanities and social sciences) in images and the visual, or the Imaginary more broadly. This collection will appeal to scholars and students of social and legal theory, visual culture, justice and governance studies, media studies, and criminology.

How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have 'constitutions'? Should everyone want to live under a system of law? Is there a special kind of 'legal justice'? Does it consist simply in applying the law of the system? And how does it relate to the ideal of 'the rule of law'? These and other classic questions in the philosophy of law form the subject-matter of Law as a Leap of Faith. In this book John Gardner collects, revisits, and supplements fifteen years of celebrated writings on general questions about law and legal systems - writings in which he attempts, without loss of philosophical finesse or insight, to cut through some of the technicalities with which the subject has become encrusted in the late twentieth century. Taking his agenda broadly from H.L.A. Hart's The Concept of Law (1961), Gardner shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms - in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process Gardner engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin. Most importantly he presents the main elements of his own unique and refreshingly direct way of thinking about law, brought together in one place for the first time.

This open access book contains 13 contributions on global animal law, preceded by an introduction which explains key concepts and methods. Global Animal Law refers to the sum of legal rules and principles (both state-made and non-state-made) governing the interaction between humans and other animals, on a domestic, local, regional, and international level. Global animal law is the response to the mismatch between almost exclusively national animal-related legislation on the one hand, and the global dimension of the animal issue on the other hand. The chapters lay some historical foundations in the ius naturae et gentium, examine various aspects of how national and international law traditionally deals with animals as commodity; and finally suggest new legal concepts and protective strategies. The book shows numerous entry points for animal issues in international law and at the same time shifts the focus and scope of inquiry.

As society struggles to cope with the many repercussions of assisted life and death, the evening news is filled with stories of legal battles over frozen embryos and the possible prosecution of doctors for their patients' suicide. Using an "institutional" approach as an alternative to the prevailing "rights" based analysis of problems in law and medicine, this study explains why society should resist the tendency to look to science and law for a resolution of intimate matters, such as how our children are born and how we die. Palmer's institutional approach demonstrates that legislative analysis is often more important than judicial analysis when it comes to issues raised by new reproductive technologies and physician-assisted suicide. A reliance on individual rights alone for answers to the complex ethical questions that result from society's faith in scientific progress and science's close alliance with medicine will be insufficient and ill-advised. Palmer predicts that the key role of the family as a societal institution will mean that questions of assisted reproduction will be resolved more in response to market forces than through legal intervention. However, he does support a strong role for legislatures in decisions involving the physicians' role in our deaths. These findings are based on the differing views of the Supreme Court justices in these matters: a tendency to protect family formation from state interference (as in abortion decisions), but support of a legislative obligation to control medicine (assisted suicide). According to Palmer, recent Supreme Court decisions on physician assisted suicide usher in a new era in how legal institutions will resolve biomedical dilemmas.

What is a right? What, if anything, makes rights different from other features of the normative world, such as duties, standards, rules, or principles? Do all rights serve some ultimate purpose? In addition to raising these questions, philosophers and jurists have long been aware that different senses of 'a right' abound. To help make sense of this diversity, and to address the above questions, they developed two types of accounts of rights: models and theories. This book explicates rights modelling and theorising and scrutinises their methodological underpinnings. It then challenges this framework by showing why the theories ought to be abandoned. In addition to exploring structural concerns, the book also addresses the various ways that rights can be used. It clarifies important differences between rights exercise, enforcement, remedying, and vindication, and identifies forms of legal rights-claiming and rights-invoking outside of institutional contexts.

This book offers a first rate selection of academic articles on Latin American bioethics. It covers different issues, such as vulnerability, abortion, biomedical research with human subjects, environment, exploitation, commodification, reproductive medicine, among others. Latin American bioethics has been, to an important extent, parochial and unable to meet stringent international standards of rational philosophical discussion. The new generations of bioethicists are changing this situation, and this book demonstrates that change. All articles are written from the perspective of Latin American scholars from several disciplines such as philosophy and law. Working with the tools of analytical philosophy and jurisprudence, this book defends views with rational argument, and opening for pluralistic discussion.

This volume considers the ethics of policing and imprisonment, focusing particularly on mass incarceration and police shootings in the United States. The contributors consider the ways in which non-ideal features of the criminal justice system-features such as the prevalence of guns in America, political pressures, considerations of race and gender, and the lived experiences of people in jails and prisons-impinge upon conclusions drawn from more idealized models of punishment and law enforcement. There are a number of common themes running throughout the chapters. One is the contrast between idealism and realism about justice. Another is the attention to harmful consequences, not only of prisons themselves, but to the events that often precede incarceration, including encounters with police and pre-trial detention. A third theme is the legacy of racism in the United States and the role that the criminal justice system plays in perpetuating racial oppression.

This book adds impetus to the nexus between human rights, human rights education and material reality. The dissonance between these aspects is of growing concern for most human rights educators in various social contexts. The first part of the book opens up new discourses and presents new ontologies and epistemologies from scholars in human rights, human rights education and human rights literacies to critique and/or justify the understandings of human rights' complex applications. Today's rapidly changing social contexts and new languages attempting to understand ongoing dehumanization and violations, put enormous pressure on higher education, educators, individuals working in social sciences, policy makers and scholars engaged in curricula making.The second part demonstrates how global interactions between citizens from different countries with diverse understandings of human rights (from developed and developing democracies) question the link between human rights and it's in(ex)clusive Western philosophies. Continuing inhumane actions around the globe reflect the failure of human rights law and human rights education in schools, higher education and society at large. The book shows that human rights education is no longer a blueprint for understanding human rights and its universal or contextual values presented for multicomplexial societies. The final chapters argue for new ontologies and epistemologies of human rights, human rights education and human rights literacies to open-up difficult conversations and to give space to dissonant and disruptive discourses. The many opportunities for human rights education and literacies lies in these conversations.

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Culture is the lens through which we make sense of the world. In any conflict, from petty disputes to wars between nation-states, the players invariably view that conflict through the filter of their own cultural experiences. This innovative volume prompts us to pause and think through our most fundamental assumptions about how conflict arises and how it is resolved.

Even as certain culturally based disputes, such as the high-profile cases in which an immigrant engages in conduct considered normal in the homeland but which is explicitly illegal in his/her new country, enter public consciousness, many of the most basic intersections of culture and conflict remain unexamined. How are some processes cultured, gendered, or racialized? In what ways do certain groups and cultures define such concepts as "justice" and "fairness" differently? Do women and men perceive events in similar fashion, use different reasoning, or emphasize disparate values and goals?

Spanning a wide array of disciplines, from anthropology and psychology to law and business, and culling dozens of intriguing essays, The Culture and Conflict Reader is edited for maximum pedagogical usefulness and represents a bedrock text for anyone interested in conflict and dispute resolution.

Contributors include: Kevin Avruch, Peter W. Black, Jeffrey Z. Rubin, Frank E. A. Sander, John Paul Lederach, Heather Forest,"" Sara Cobb, Janet Rifkin, Ryunosuke Akutagawa, Laura Nader, Pat Chew, Stella Ting-Toomey, Harry C. Triandis, Christopher McCusker, C. Harry Hui, Anita Taylor, Judi Beinstein Miller, Carol Gilligan, Trina Grillo, James W. Grosch, Karen G. Duffy, Paul V. Olczak, Michele Hermann, MarthaChamallas, Loraleigh Keashly, Phil Zuckerman, Tracy E. Higgins, Howard Gadlin, Janie Victoria Ward, Kyeyoung Park, Taunya Lovell Banks, Margaret Read MacDonald, Mary Patrice Erdmans, Manu Aluli Meyer, Doriane Lambelet Coleman, Bruce D. Bonta, Paul E. Salem, Mohammed Abu-Nimer, Marc H. Ross, Z.D. Gurevitch, Mari J. Matsuda, Charles R. Lawrence III, Hsien Chin Hu, Glenn R. Butterton, Walter Otto Weyrauch, Maureen Anne Bell, Martti Gronfors, Thomas Donaldson, Marjorie Shostak, and Heather Forest.

Clearly, the structure of authority in this country rests on how Americans understand the nature and relationship of law and politics. Law consists of pronouncements from the courts, but also of what we think of these pronouncements: should abortion be a choice or is it murder? Law is formed as much through the dynamic tensions that govern how these laws are received as through their official decree. Legal forms - contracts, property, rights - similarly do not reflect pre-existing or natural categories but themselves constitute social and political life because they dictate how we conceptualize our world. Even activists who seek reform inadvertently reinforce the traditional legal remedies against which they rally, oftentimes relying on legal institutions while claiming to be free of them. John Brigham's book focuses on four particular ideological movements and their strategies, including the emphasis placed by gay men on their rights during the legal struggle over the closing of gay bathhouses in the early years of the AIDS crisis and the radical feminist use of rage and radical consciousness in anti-pornography campaigns. The effect of law in politics, Brigham convincingly reveals, is constitutive precisely when political life finds its meaning in various legal forms.

This book examines the success of Frederick Schauer's efforts to reclaim force as a core element of a general concept of law by approaching the issue from different legal traditions and distinct perspectives. In discussing Schauer's main arguments, it contributes to answering the question whether force, sanctions and coercion should (or should not) be regarded as necessary elements of the concept of law, and whether legal philosophy should be concerned at all (or exclusively) with necessary or essential properties. While it was long assumed that legal norms are essentially defined by their force, it was H.L.A. Hart who raised doubts about whether law and coercion are necessarily connected, referring to the empowering, or more generally enabling, character exhibited by some legal norms. Prominent scholars following and refining Hart's argument built an influential case for excluding force as a necessary element of the concept of law. Most recently, however, Frederick Schauer has made a strong case to reaffirm the force of law, shedding new light on this essential question. This book collects important commentaries, never before published, by prominent legal philosophers evaluating Schauer's substantive arguments and his claims about jurisprudential methodology.

This volume features fourteen essays that examine the works of key figures within the phenomenological movement in a clear and accessible way. It presents the fertile, groundbreaking, and unique aspects of phenomenological theorizing against the background of contemporary debate about social ontology and collective intentionality. The expert contributors explore the insights of such thinkers as Martin Heidegger, Edmund Husserl, Adolf Reinach, and Max Scheler. Readers will also learn about other sources that, although almost wholly neglected by historians of philosophy, testify to the vitality of the phenomenological tradition. In addition, the contributions highlight the systematic relevance of phenomenological research by pinpointing its position on social ontology and collective intentionality within the history of philosophy. By presenting phenomenological contributions in a scholarly yet accessible way, this volume introduces an interesting and important perspective into contemporary debate insofar as it bridges the gap between the analytical and the continental traditions in social philosophy. The volume provides readers with a deep understanding into such questions as: What does it mean to share experiences with others? What does it mean to share emotions with friends or to share intentions with partners in a joint endeavor? What are groups? What are institutional facts like money, universities, and cocktail parties? What are values and what role do values play in social reality?

Connected to the jurisprudence surrounding the copyrightability of a factual compilation, this book locates the footprints of the standard envisaged in a US Supreme court decision (Feist) in Europe. In particular, it observes the extent of similarity of such jurisprudence to the standard adopted and deliberated in the European Union. Many a times the reasons behind law making goes unnoticed. The compelling situations and the history existing prior to an enactment helps in understanding the balance that exists in a particular legislation. While looking at the process of enacting the Database Directive (96/9/EC), this book reflects upon the concern that was expressed with the outcome of Feist decision in Europe.

This book challenges the assumptions of modern criminal law that insanity is a natural, legally and medically defined phenomenon (covering a range of medical disorders). By doing so, it paves the way for a new perspective on insanity and can serve as the basis for a new approach to insanity in modern criminal law. The book covers the following aspects: the structure of the principle of fault in modern criminal law, the development of the insanity defense in criminal law, tangential in personam defenses in criminal law and their implications for insanity and the legal mechanism of reproduction of fault. The focus is on the Anglo-American and European-Continental legal systems. Given the attention consistently drawn by international and domestic events in this context, the book will be of interest to a broad and growing international audience.

This book analyzes emergency legislations formed in response to terrorism. In recognition that different countries, with different legal traditions, have different solutions, it adopts a comparative point of view. The countries profiled include America, France, Israel, Poland, Germany and United Kingdom. The goal is not to offer judgment on one response or the other. Rather, the contributors offer a comprehensive and thoughtful examination of the entire concept. In the process, they draw attention to the inadaptability of traditional legal and philosophical categories in a new and changing political world. The contributors first criticize the idea of these legislations. They then go on to develop different models to respond to these crises. They build a general analytical framework by answering such questions as: What is an emergency legislation? What kinds of emergencies justify laws of this nature? Why is contemporary terrorism such a specific emergency justifying new laws? Using legal and philosophical reflections, this study looks at how we are changing society. Coverage also provides historical experiences of emergency legislations to further illustrate this point. In the end, readers will gain insight into the long-term consequences of these legislations and how they modify the very work of the rule of law.

This book explores the distinction and relationship between two principal branches of international law regulating the use of force: jus ad bellum (international law regulating the resort to force) and jus in bello (international humanitarian law). Two principles traditionally govern the relationship between the two: 1) separation of jus ad bellum and jus in bello and 2) equal application of jus in bello to the conflicting parties. These principles emerged in response to the claim that a conflicting party using force illegally under jus ad bellum should not benefit from the protection for victims of armed conflict under jus in bello, which would completely defeat the humanitarian purpose of jus in bello to protect all victims of armed conflict impartially. There is, however, a third principle: concurrent application of jus ad bellum and jus in bello. Unlike in the past, jus ad bellum now regulates the use of force during a conflict alongside jus in bello and hence, the two are now considered as one set of rules applying during a conflict. The book explores in detail the interaction between jus ad bellum and jus in bello in the light of these three principles. The relationship between the two has been principally discussed in the context of the use of force in self-defence and international armed conflict. However, this book examines the relationship in other contexts of a very different nature, namely the use of force under Chapter VII of the United Nations Charter, non-international armed conflict, and armed conflict of a mixed character. The book concludes that the three principles governing the relationship are equally valid, with certain variations, in these different contexts.