This illuminating book explores the theme of social constructionism in legal theory. It questions just how much freedom and power social groups really have to construct and reconstruct law. Michael Giudice takes a nuanced approach to analyse what is true and what is false in the view that law is socially constructed. He draws on accounts of European Union law as well as Indigenous legal orders in North America to demonstrate the contingency of particular concepts of law. Utilising evidence from a range of social and natural sciences, he also considers how law may have a naturally necessary core. The book concludes that while law would not exist without beliefs, intentions, and practices, it must always exist as a social rule, declaration, or directive; much, but not all, of law is socially constructed. This book will be a valuable resource for academics and students of law and philosophy as well as researchers interested in the intersections between analytical legal theory, socio-legal studies, and empirical legal studies.

International Humanitarian Law (IHL) is in a state of some turbulence, as a result of, among other things, non-international armed conflicts, terrorist threats and the rise of new technologies. This incisive book observes that while states appear to be reluctant to act as agents of change, informal methods of law-making are flourishing. Illustrating that not only courts, but various non-state actors, push for legal developments, this timely work offers an insight into the causes of this somewhat ambivalent state of IHL by focusing attention on both the legitimacy of law-making processes and the actors involved. Investigating what law-making processes reveal about the overall state of this legal regime, this thought-provoking book shows that current developments display a far-reaching disagreement about the direction into which IHL should evolve. It explores the most relevant trends in the development of IHL including the absence of formal law-making by states, informal law-making through manual processes and the increasing role of sub and non-state actors. Law-Making and Legitimacy in International Humanitarian Law will be of benefit to scholars and students of international law and relations, as well as practitioners working in the field of IHL, particularly in government ministries, international organizations and NGOs.

Grounded in history and written by a law professor, this book is a scholarly yet jargon-free explanation of the differences among the common and civil law concepts of the rule of law, and details how they developed out of two different cultural views of the relationships between law, individuals, and government. The book shows how those differences lead to differences in economic development, entrepreneurship, and corporate governance. The author considers the relationship among the ROL and economic development, the legal and economic differences between shareholder and stakeholder theory, and also offers insights into how to promote effective and sustainable change in law and business. Students and scholars of international business law, corporate governance, economics, and political economy will gain a general understanding of the topic in a way not previously presented.

Inspiring and distinctive, After Meaning provides a radical challenge to the way in which international law is thought and practised. Jean d'Aspremont asserts that the words and texts of international law, as forms, never carry or deliver meaning but, instead, perpetually defer meaning and ensure it is nowhere found within international legal discourse. In challenging the dominant meaning-centrism of the international legal discourse and shedding light on the sovereignty of forms, this book promotes a radical new attitude towards textuality in international law. The author offers new perspectives on interpretation, critique, history, comparison, translation and referencing, inviting international lawyers to reinvent their engagement with these discourses. Chapters define meaning and form in international law, explore deferral of meaning and make an unprecedented use of post-structuralist theory to rethink international law. After Meaning will be an essential reference point for legal scholars, researchers and students who seek to understand a different way of thinking about meaning in international law. The book's engagement with post-structuralism will also prove beneficial to anyone interested in the philosophy of language and literary theory.

This timely and engaging book examines the rise of populism across the globe. Combining insights from linguistics, argumentation theory, rhetoric, legal theory and political theory it offers a fully integrated characterization of the form and content of populist discourse. Throughout the book, eminent scholars address questions central to the topic, such as: how does populism manifest itself rhetorically; how does it relate to liberal democracy; and how can the populist challenge be confronted? Carefully selected case studies are used to examine how populist behaviour deviates from that which we would expect to be the norm in a liberal democracy, for example through the use of obnoxious language and refusal to substantiate vulgar claims. The book also provides key insights into more fundamental issues, such as the opposition between the 'real' people versus the elite and the longing for a 'Heimat'. Offering an in-depth analysis and evaluation at the intersection of language, law and politics, Vox Populi will be of great benefit to students and scholars from a range of disciplines.

As law's institutional configurations stand, comparative law is a relatively new discipline. The first specialized journals and chairs, for example, go back a mere two hundred years or so. Yet, in its two centuries of institutional existence, comparative law has been the focus of much discussion, mostly by comparatists themselves reflecting on their practice. Indeed, some of this thinking came firmly to establish itself as a governing epistemology within the field. This book holds that the time has nonetheless come, even for such a young venture as comparative law, to engage in a re-thinking of its intellectual ways. Specifically, three comparatists hailing from different horizons investigate various assumptions and lines of reasoning that must invite reconsideration. The principal ambition informing the work is to optimize the interpretive rewards that the comparison of laws is in a position to generate. Not limited to a particular country or jurisdiction, Rethinking Comparative Law aims to attract a large audience comprising students and scholars from diverse cultural backgrounds. Undergraduate or postgraduate law students and lawyers with an interest in comparative law will find the book helpful for a better appreciation of the many implications arising from the increased interaction with foreign law in a globalizing world.

Elgar Advanced Introductions are stimulating and thoughtful introductions to major fields in the social sciences, business and law, expertly written by the world's leading scholars. Designed to be accessible yet rigorous, they offer concise and lucid surveys of the substantive and policy issues associated with discrete subject areas. Herbert Kritzer presents a clear introduction to the history, methods and substance of empirical legal research (ELR). Quantitative methods dominate in empirical legal research, but an important segment of the field draws on qualitative methods, such as semi-structured interviews and observation. In this book both methodologies are explored alongside systematic data analysis. Offering an overview of the broad ELR literature, the institutions of the law, the central actors of the law, and the subjects of the law are each addressed in this highly readable account that will be essential reading for legal researchers. Key features include: Summaries of the history of empirical legal research A clear introduction to methods in empirical legal research Coverage of both quantitative and qualitative methods and research A readable guide to the impact and rationale of different methodologies. This relatively short book provides an invaluable quick introduction for students, scholars, legal professionals and policy professionals.

Exploring the notion that norms are often seen as static structures governing society, politics and legislation, this thought-provoking book offers insights into Robert Alexy's theory of constitutional rights and the range in rigidity of two norm categories: rules and principles. Arguing that constitutional pluralism and the differentiation between norms is also present in EU law, Anne Wesemann asserts that EU Citizenship is a principle and thus a constitutional rights norm. Providing new perspectives on constitutionalism in the EU, this book considers the way the Court of Justice of the European Union (CJEU) discusses and applies the EU citizenship Treaty norms by analysing the court's approach to decision making, which mirrors the balancing and weighing of conflicting principles. Wesemann proposes a new approach to constitutional analysis of the EU and its legal framework, arguing that the existence of constitutional rights norms in EU law enables this particular legal order to respond effectively to societal and political challenges within the rigidity of constitutionalism. Citizenship in the European Union will be a key resource for scholars and students of constitutional law and politics. Its contribution to the discourse around judicial activism and politicisation will also be essential reading for those studying the workings of the CJEU.

This insightful book offers an in-depth examination of whether, and if so how and to what degree, contemporary international law can and should conform to and develop the rule of law principle. Motivated by the neglect of conceptual and normative theorizing of the international rule of law within contemporary international legal scholarship, Denise Wohlwend analyses the moral and legal principle of the rule of law in the international legal order. The book draws on the tradition of analytical jurisprudence to explore the possibility and desirability of the international rule of law. Encompassing both international and domestic legal orders, the book advocates for a shift in the way the international rule of law is theorized, endorsing an approach that understands it as beneficial to individuals and as closely related to the domestic rule of law. This will be an invigorating read for legal scholars who deal with the international rule of law, whether at the level of positive law or legal theory. Representatives of international institutions, non-governmental organizations and policy-makers interested in the policy debate on the development and the strengthening of the international rule of law may also find this a useful book.

Providing a comprehensive account of the often-misunderstood area of legal doctrinal scholarship, this incisive book offers a novel framing for conceptual legal theory and the functions of conceptual theorising in legal studies. It explores the ways in which a doctrinally-oriented legal theory may provide methodological support to legal scholars, arguing that making adequate sense of the rational reconstruction of law is pivotal in delivering such active support. The epistemological key to the central themes of the book is the idea that doctrinal disciplines are anchored in the concept of 'doctrinal knowledge', the practice-specific normative knowledge used to navigate institutionalised social practices. The distinctive epistemological and political philosophical grounding for legal doctrinal scholarship demonstrated in this book facilitates a rich analysis of the three core models of interdisciplinary engagement characteristic of legal scholarship. Considering how legal doctrinal scholarship cultivates doctrinal knowledge by way of hermeneutic engagement with positive law, this thought-provoking book will be a key resource for students and scholars of constitutional law, criminal law, private law and international law. It will also be of benefit to legal theorists, philosophers and practitioners.

How might law address the multiple crises of meaning intrinsic to global crises of climate, poverty, mass displacements, ecological breakdown, species extinctions and technological developments that increasingly complicate the very notion of 'life' itself? How can law embrace - in other words -the 'posthuman' condition - a condition in which non-human forces such as climate change and Covid-19 signal the impossibility of clinging to the existing imaginaries of Western legal systems and international law? This carefully curated book addresses these and related questions, bringing 'law beyond the human' (drawing on Indigenous legalities, life ways and ontologies) and New Materialist and Posthuman/ist approaches into stimulating proximity to each other. Bold and astute, it draws an invigorating and lively mix of participants into its conversation: soils, urban animals, rivers, rights, Indigenous legalities, property as habitat, swarms, 'unusual posthuman capacities', decolonial critiques, eco-feedback, arts, affective encounters and more besides. Ultimately, this pivotal work shows how law currently fails to respond to the challenges and realities it faces, while demonstrating that law can also be a co-emergence of 'something else', more responsive, relational and prefigurative. Lively and engaging, Posthuman Legalities will prove an imperative read for students and scholars with a keen interest in breaking down barriers to address emerging challenges in environmental law, climate law, and human rights law, in conversation with new approaches to planetary justice.

This cutting-edge book facilitates debate amongst scholars in law, humanities and social sciences, where comparative methodology is far less well anchored in most areas compared to other research methods. It posits that these are disciplines in which comparative research is not simply a bonus, but is of the essence. Featuring discussions and reflections from scholars experienced in conducting comparative research, this book considers the ways in which comparative legal research can gain important comparative, qualitative and interpretive insights from the humanities and from the social sciences. Chapters examine contrasting comparative legal versus historical approaches, comparative sociology, comparative religion, comparative (legal) anthropology, comparative philosophy, comparative economics and more. Additionally, the book considers the challenges that lie ahead, not just for comparative legal research, but for comparative disciplines as a whole. Of the many challenges that are identified and discussed, the book concludes that comparative research can especially be further developed when it is also understood as a research design, instead of just a method. Inspiring and progressive, this book will be a crucial reference point for both research students and experienced researchers who are embarking on comparative research within the disciplines of law, humanities and social sciences.

This Research Handbook offers unparalleled insights into the large-scale resurgence of interest in Marx and Marxism in recent years, with contributions devoted specifically to Marxist critiques of law, rights, and the state. The Research Handbook brings together thirty-three scholars of Marx, Marxism, and law from around the world to offer theoretically informed introductions to the Marxist tradition of social critique, contemporary Marxist analyses of law and rights, and future orientations of Marxist legal analysis. Chapters testify to the strength of Marxist critical tools for understanding the role of law, rights, and the state in capitalist societies. Exploring Marxist critique across an extraordinarily wide range of scholarly disciplines, this Research Handbook is a must-read for scholars of law, politics, sociology, philosophy, and political economy who are interested in Marxism. Graduate and advanced undergraduate students in these and related disciplines will also benefit from the Research Handbook.

This innovative book extensively probes and reveals the existence of legal fictions in international law, developing a theory of their effectiveness and legitimacy. Reece Lewis argues that, since legal fictions exist in all systems and types of law, international law is no different and deserves discrete, detailed examination. The book considers the implications of the phenomenon, showing that while some international legal fictions are problematic, others can assist the application of international law through maintaining a coherent, stable and peaceful international legal order. The author identifies and critically analyses a host of international legal fictions and explores, in detail, the factors that determine their effectiveness. Chapters answer key questions such as: what is a legal fiction?, How do they exist in international law?, Should international law use legal fictions? and many more. Shedding light on a subject that is of contemporary relevance and importance, Legal Fictions in International Law will be an informative read for academics, researchers and students in international law, legal theory and public policy.

Exploring the growing significance of the administration of justice in both democratic and non-democratic countries, often labeled as 'the judicialization of politics', this timely book considers how increased levels of interest in the analysis of judicial institutions have been triggered. It examines the expansion of the role of judges and courts in the political system and the mixed reactions generated by these developments. In this comprehensive book, Carlo Guarnieri and Patrizia Pederzoli draw on a wealth of experience in teaching and research in the field, moving beyond traditional legal analysis and providing a clear, concise and all-encompassing introduction to the phenomenon of the administration of justice and all of its traits. Facilitating a deeper understanding of the concrete dynamics characterizing the judicial system and its relationships with the political environment, it also offers a balanced assessment of the process of judicialization. Students and scholars interested in comparative law and politics, and law and society, who wish to broaden their understanding of courts and the operation of the judicial system will find this to be a valuable resource. The wide coverage of cases from both common and civil law traditions will also appeal to practitioners.

This illuminating Research Handbook analyses the role that emotions play, and ought to play, in legal reasoning and practice, rejecting the simplistic distinction between reason and emotion. International expert contributors take multidisciplinary approaches, drawing on neuroscience, philosophy, literary theory, psychology, history, and sociology to examine the role of a wide range of emotions across a variety of legal contexts. Chapters consider how the rich tapestry of human emotion impacts legal actors, influences legal doctrine, and shapes the dynamics of legal institutions. Moving beyond legal contexts traditionally considered rife with emotion such as the criminal law and jury trials, the Handbook explores how emotion relates to contracts, property, bankruptcy, international law, and truth and reconciliation commissions. It also reflects on the importance of research methodologies, theories, and techniques for assessing the role of emotion in the legal arena. Surveying the depth and complexity of law and emotion across a panoply of legal actions, institutional contexts, and legal doctrines, this Handbook will be critical reading for academics and students of legal theory and legal philosophy. Its detailed examination of emotions in the practice of private, public, international, and criminal law will also be beneficial for legal officials and practitioners.

The Truth and Reconciliation Commission (TRC), established in South Africa after the collapse of apartheid, was the bold creation of a people committed to the task of rebuilding a nation and establishing a society founded upon justice, equality and respect for the rule of law. As part of its historic, cathartic mission, the TRC held a special hearing, calling to account the lawyers - judges, academics and members of the bar - who had been crucial participants in the apartheid legal order. This book is an account of those hearings, and an attempt to evaluate, in the light of the theories of adjudication, the historical role of the judiciary and bar in the apartheid years. It argues, often in the words of those who testified, how the judges failed in their duty to uphold the rule of law. For the most part, the lawyers of apartheid are found to have deserted its victims.;The few notable exceptions both illustrate the potential for lawyers to have done more and lay the basis for the respect the rule of law still enjoys in South Africa despite apartheid. Yet, the author argues, many continue to commit a more serious "crime". Failing to confront the past, and in many cases refusing even to attend TRC hearings, the lawyers who could have helped to resist the worst excesses of apartheid remain accomplices to its evil deeds. This book offers us the spectacle of an entire legal system on trial. The echoes from this process are captured here in a way that will appeal to all readers - lawyers and non-lawyers alike - interested in the relationship between law and justice, as it is exposed during a period of transition to democracy.

Allan Beever lays the foundation for a timely philosophical and empirical study of the nature of law with a detailed examination of the structure of evolving law through declaratory speech acts. This engaging book demonstrates both how law itself is achieved and also its ability to generate rights, duties, obligations, permissions and powers. Structured into three distinct parts - the philosophy of law and jurisprudence, the structure of the social word and the ontology of law, and the reconstruction of the philosophy of law - the author provides insight into law as a human institution and reveals that central debates are often based on misunderstandings of interpretation and intentionality. Inspired by the philosophy of John Searle alongside other well-respected legal theorists, the author also analyses both sides of the mainstream jurisprudential divide in its current state, in particular the theory of legal positivism. Examining all aspects of law and answering the important question of 'What is Law?', this book will be an invaluable resource for academics and advanced students in law schools and philosophy departments.

This insightful Research Handbook provides a definitive overview of the New Legal Realism (NLR) movement, reaching beyond historical and national boundaries to form new conversations. Drawing on deep roots within the law-and-society tradition, it demonstrates the powerful virtues of new legal realist research and its attention to the challenges of translation between social science and law. Highlighting a contrast with the current Empirical Legal Studies movement, chapters employ a variety of theoretically grounded methods to understand law and address legal problems. They explore an impressive range of contemporary issues including immigration, policing, globalization, legal education, and access to justice, concluding with an examination of how different social science disciplines intersect with NLR. Incorporating global perspectives, the Research Handbook on Modern Legal Realism will be a key resource for scholars and students of legal theory and sociolegal studies. Illuminating the best approaches for combining social science considerations with expert perspectives on legal doctrines, it will also be of interest to practitioners and policy makers working in fields such as criminal and family law.