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Shame punishment has existed for perhaps as long as people have been punished, and the issue has been revisited in recent years to help improve crime reduction efforts. In this collection, shame punishment is examined from various critical perspectives, including its relation with expressivism, the diversity of shame punishment used today, the link between shame punishment and restorative justice, the relationship between dignity and shame punishment, shame punishment and its use for sex offenders, and critics of shame punishment in its different incarnations. The selected essays are from leading experts and represent the most important contributions to scholarly research in the field.
Deterrence is a theory which claims that punishment is justified through preventing future crimes, and is one of the oldest and most powerful theories about punishment. The argument that punishment ought to secure crime reduction occupies a central place in criminal justice policy and is the site for much debate. Should the state deter offenders through the threat of punishment? What available evidence is there about the effectiveness of deterrence? Is deterrence even possible? This volume brings together the leading work on deterrence from the dominant international figures in the field. Deterrence is examined from various critical perspectives, including its diversity, relation with desert, the relation of deterrence with incapacitation and prevention, the role deterrence has played in debates over the death penalty, and deterrence and corporate crime.
Hussain analyses the uses and the history of a range of emergency
powers, such as the suspension of habeas corpus and the use of
military tribunals. His study focuses on British colonialism in
India from the late eighteenth to the early twentieth century to
demonstrate how questions of law and emergency shaped colonial
rule, which in turn affected the place of colonialism in modern
law, depicting the colonies not as passive recipients but as agents
in the interpretation and delineation of Western ideas and
This book sets out a possible trajectory for the co-development of legal responsibility on the one hand and artificial intelligence and the machines and systems driven by it on the other. As autonomous technologies become more sophisticated it will be harder to attribute harms caused by them to the humans who design or work with them. This will put pressure on legal responsibility and autonomous technologies to co-evolve. Mark Chinen illustrates how these factors strengthen incentives to develop even more advanced systems, which in turn inspire nascent calls to grant legal and moral status to autonomous machines. This book is a valuable resource for scholars and practitioners of legal doctrine, ethics and autonomous technologies, as well as legislators and policy makers, and engineers and designers who are interested in the broader implications of their work.
Protracted and bitter resistance by alter- and anti-globalisation movements shows that the globalisation of law transpires as the globalisation of inclusion and exclusion. Humanity is inside and outside global law in all its possible manifestations. But how is this possible? How must legal orders be structured, such that, even if we can now speak of law beyond state borders, no emergent global legal order is possible that does not include without excluding? Is an authoritative politics of boundaries possible that neither postulates the possibility of realising an all-inclusive global legal order nor accepts resignation or political paralysis in the face of the globalisation of inclusion and exclusion? These pressing questions guide this book, opening up a vast field of enquiry that demands integrating sociological, doctrinal and philosophical perspectives and insights.
This collection surveys the literature relevant to law and anthropology. It also brings together attempts by western scholars to understand non-western forms of jurisprudence in their own terms, and illustrates diverse non-western approaches to law.
The first known abolitionist critique of the death penalty-here for the first time in English In 1764, a Milanese aristocrat named Cesare Beccaria created a sensation when he published On Crimes and Punishments. At its centre is a rejection of the death penalty as excessive, unnecessary, and pointless. Beccaria is deservedly regarded as the founding father of modern criminal-law reform, yet he was not the first to argue for the abolition of the death penalty. Against the Death Penalty presents the first English translation of the Florentine aristocrat Giuseppe Pelli's critique of capital punishment, written three years before Beccaria's treatise, but lost for more than two centuries in the Pelli family archives. Peter Garnsey examines the contrasting arguments of the two abolitionists, who drew from different intellectual traditions. Pelli was a devout Catholic influenced by the writings of natural jurists such as Hugo Grotius, whereas Beccaria was inspired by the French Enlightenment philosophers. While Beccaria attacked the criminal justice system as a whole, Pelli focused on the death penalty, composing a critique of considerable depth and sophistication. Garnsey explores how Beccaria's alternative penalty of forced labour, and its conceptualisation as servitude, were embraced in Britain and America, and delves into Pelli's voluminous diaries, shedding light on Pelli's intellectual development and painting a vivid portrait of an Enlightenment man of letters and of conscience. With translations of letters exchanged by the two abolitionists and selections from Beccaria's writings, Against the Death Penalty provides new insights into eighteenth-century debates about capital punishment and offers vital historical perspectives on one of the most pressing questions of our own time.
Law and Evil presents an alternative evolutionary picture of man, focusing on the origins and nature of human evil, and demonstrating its useful application in legal-philosophical analyses. Using this representation of human nature, Wojciech Zaluski analyses the development of law, which he interprets as moving from evolutionary ethics to genuine ethics, as well as arguing in favour of metaethical realism and ius naturale. Zaluski argues that human nature is undoubtedly ambivalent: human beings have been endowed by natural selection with moral, immoral, and neutral tendencies (the first ambivalence), and the moral tendencies themselves are ambivalent (the second ambivalence), giving rise to an inferior form of ethics called 'evolutionary ethics'. Introducing a novel distinction between two types of evil, primary and secondary, this book explores the differences between evolutionary ethics and genuine ethics in order to analyse the history of legal systems and the controversy between natural law and legal positivism. Engaging and thought-provoking, this insightful book will be vital reading for both legal scholars and philosophers, especially those of law and moral philosophy. Evolutionary biologists with an interest in a philosophical interpretation of the results of evolutionary biology will also find this book an important read.
In "Between Facts and Norms" Habermas works out the legal and political implications of his theoretical approach, bringing to fruition the project announced more than three decades ago in "The Structural Transformation of the Public Sphere. Between Facts and Norms" is a major contribution to current debates on the role of law and the prospects for the development of democracy in contemporary societies. Habermas develops a distinctive account of the nature of law, arguing that law is characterized by an internal tension between factual and normative aspects. He links this account to a broader argument concerning the formation of the modern constitutional state and the role of democratic deliberation as a means of securing the legitimacy of legal norms in complex, pluralistic societies.
The first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all levels. The work is divided The theoretical part (published in 2005), consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes (Volumes 6-8 published in 2007; Volumes 9 and 10, published in 2009; Volume 11 published in 2011 and volume 12 forthcoming in 2015), accounts for the development of legal thought from ancient Greek times through the twentieth century. The entire set will be completed with an index. Volume 7: The Jurists' Philosophy of Law from Rome to the Seventeenth Century edited by Andrea Padovani and Peter Stein Volume 7 is the second of the historical volumes and acts as a complement to the previous Volume 6, discussing from the jurists' perspective what that previous volume discusses from the philosophers' perspective. The subjects of analysis are, first, the Roman jurists' conception of law, second, the metaphysical and logical presuppositions of late medieval legal science, and, lastly, the connection between legal and political thought up to the 17th century. The discussion shows how legal science proceeds at every step of the way, from Rome to early modern times, as an enterprise that cannot be untangled from other forms of thought, thus giving rise to an interest in logic, medieval theology, philosophy, and politics-all areas where legal science has had an influence. Volume 8: A History of the Philosophy of Law in The Common Law World, 1600-1900 by Michael Lobban Volume 8, the third of the historical volumes, offers a history of legal philosophy in common-law countries from the 17th to the 19th century. Its main focus (like that of Volume 9) is on the ways in which jurists and legal philosophers thought about law and legal reasoning. The volume begins with a discussion of the 'common law mind' as it evolved in late medieval and early modern England. It goes on to examine the different jurisprudential traditions which developed in England and the United States, showing that while Coke's vision of the common law continued to exert a strong influence on American jurists, in England a more positivist approach took root, which found its fullest articulation in the work of Bentham and Austin.
Conversation and argument concerning laws and legal situations take place throughout society and at all levels, yet the language of these conversations differs greatly from that of the courtroom. This insightful book considers the gap between everyday discussion about law and the artificial, technical language developed by lawyers, judges and other legal specialists. In doing so, it explores the intriguing possibilities for future synthesis, a problem often neglected by legal theory. Analyzing the major components of law and legal procedure across both common and civil law, this book reveals how legal conversation on the 'street' contributes to our understanding of law as well as our democratic citizenship. Jan M. Broekman and Frank Fleerackers consider the impact of multiculturalism and the threat of terror on our impressions of legal conversation and the importance we place upon it, arguing that anarchism and legalism are hostile neighbors sharing many themes and motives. Exploring the meaning and sense of the concept of 'street' in ancient and modern times, the authors pose the question: is law just a discourse or should it be classified as one of the major narratives in human life? Unique and discerning, this book will appeal to anyone interested in the language of law. Legal educators will find their scope broadened whilst researchers, activists and politicians will find themselves captivated by the focus on social activism and citizen motivation.
This Short Introduction looks at judging and reasoning from three perspectives: what legal reasoning has been; what legal reasoning is from the view of judges and jurists; and what legal reasoning is from the view of a social science epistemologist or humanities specialist. Geoffrey Samuel begins by identifying the main institutional focal points of legal reasoning (ius, regula iuris, Interpretatio, utilitas and actiones). While examining legal reasoning from both an internal and external viewpoint, the book simultaneously incorporates theory and scholarship from a range of other disciplines including social science and film studies. The author also includes a discussion of fiction theory, schemes of intelligibility, and other epistemological issues as well as standard reasoning devices such as induction, deduction and analogy. Combining cases and materials with original text, this unique, concise format is designed to be accessible for students who are starting out on their law programmes, as well as providing insights for students and researchers who would like to examine judging and legal reasoning in more depth.
Property, or property rights, remains one of the most central elements in moral, legal, and political thought. It figures centrally in the work of figures as various as Grotius, Locke, Hume, Smith, Hegel and Kant. This collection of essays brings fresh perspective on property theory, from both legal and political theoretical perspectives, and is essential reading for anyone interested in the nature of property. Edited by two of the world's leading theorists of property, James Penner and Michael Otsuka, this volume brings together essays which consider, amongst other topics, property and public law, the importance of legal forms in property theory, whether use or exclusion are most essential to our understanding of property, distributive justice, Lockean and Grotian theories, the common ownership of the Earth, and Confucian ideas of property.
The 'law-language-law' theme is deeply engraved in Occidental culture, more so than contemporary studies on the subject currently illustrate. This insightful book creates awareness of these cultural roots and shows how language and themes in law can be richer than studying a simple mutuality of motives. Focusing on the multilevel phenomenon of 'speech', Jan M. Broekman explores the history of this theme, from the West-European Middle Ages, through to today's globalization. Existing philosophical concepts are studied for their views on 'alter', other and otherness in speech, alongside scientific approaches including 'semiotics', 'structuralism' and, in particular, 'legal consciousness'. This state-of-the-art book unveils today's problems with the two faces of language: the analog and the digital, on the basis of which our smart phones and Artificial Intelligence create modern life. Innovative and explorative, Rethinking Law and Language will be of value to law scholars, social scientists and psychologists alike. The investigation of professional language and the impact of digital communication on social relations will also appeal to judges and other officials as well as politicians.
What role does empirical data play in law? How can we draw normative conclusions from empirical legal research? New insights in philosophy, the social sciences and the humanities have forced the relationship between facts and norms on to the agenda. This book presents an innovative set of perspectives on the relationship between descriptive and normative elements in legal inquiry and practice. The contributors provide critical insights from a range of different disciplinary traditions and theoretical positions. They discuss topics such as the epistemic dependence of judicial decision-makers, legal doctrine as a non-normative discipline, systems-theory critique and law, and exploring the boundaries of law. This book will benefit legal academics and graduate students looking to explore issues of methodology. It will also be of great interest to researchers in law and related topics, who are interested in discussions of multidisciplinary and interdisciplinary research.
The third edition of Jurisprudence offers a logically structured, comprehensive, well-researched and accessible overview of legal theory and philosophy. Written primarily for undergraduate students, it examines and demystifies the discipline's major ideas, and promotes a richer understanding of the social, moral and economic dimensions of the law. By locating the major traditions of jurisprudence within the history of ideas, the author deepens students' understanding of the perennial debates about the nature and function of law and its relation to justice. Fully revised and updated, with new materials on all topics, Suri Ratnapala's Jurisprudence remains an essential text for students and researchers of jurisprudence and legal theory.
Building upon an understanding of the rule of law as an 'essentially contested concept', this insightful book investigates the historical, political, and legal foundations of the Chinese perspectives on the rule of law at both a national and international level. In particular, chapters focus on China's impact on global trade and security governance. These case studies enable conclusions to be drawn regarding China's more general perspectives on the international rule of law as a concept. Offering a thorough analysis of EU-China relationships, the book highlights the prospects and challenges for a meaningful dialogue on the rule of law and the international rule of law. In doing so, it illustrates the merits of the rule of law as a concept to engage in meaningful dialogues across a myriad of legal and political systems. This book will hold particular appeal for students and scholars of Chinese law, International law, EU-China relations, and legal theory. Policy makers will also find this a stimulating read as the work aims to build both academic and policy bridges between the Western and Chinese conceptions on the rule of law at both national and international levels.
Are judges' decisions more likely to be based on personal inclinations or legal authority? The answer, Eileen Braman argues, is both. Law, Politics, and Perception brings cognitive psychology to bear on the question of the relative importance of norms of legal reasoning versus decision markers' policy preferences in legal decision-making. While Braman acknowledges that decision makers' attitudes--or, more precisely, their preference for policy outcomes--can play a significant role in judicial decisions, she also believes that decision-makers' belief that they must abide by accepted rules of legal analysis significantly limits the role of preferences in their judgements. To reconcile these competing factors, Braman posits that judges engage in "motivated reasoning," a biased process in which decision-makers are unconsciously predisposed to find legal authority that is consistent with their own preferences more convincing than those that go against them. But Braman also provides evidence that the scope of motivated reasoning is limited. Objective case facts and accepted norms of legal reasoning can often inhibit decision makers' ability to reach conclusions consistent with their preferences.
There exists a genuine degree of scepticism as to whether Hans Kelsen's pure theory of law can rationalise the intricacies of the English legal system. This groundbreaking book examines pertinent aspects of English law relating to constitutional patterns of law-making, the relationship between law and policy, and the ultimate efficacy of the legal order, through the pure theory's prism. This insightful book demonstrates that Kelsen's theory is highly suitable to examine some of these issues, and in some aspects of English law it actually possesses the analytical cutting edge. Beginning with an overview of the outlook and methodology of the pure theory of law and placing it within the broader focus of positive scholarship, Orakhelashvili moves on to offer a description of the relationship between methods of the legal theory and the workings of a legal system, along with assessments of the relationship between law and policy in legal theory and in judicial practice, and of criticisms of the pure theory. Thoughtful and perceptive, this book will be valuable reading for legal scholars, social scientists, judges, practicing lawyers, legal historians, political scientists, and law students.
Privacy is gravely endangered in the digital age, and we, the digital citizens, are its principal threat, willingly surrendering it to avail ourselves of new technology, and granting the government and corporations immense power over us. In this highly original work, Firmin DeBrabander begins with this premise and asks how we can ensure and protect our freedom in the absence of privacy. Can-and should-we rally anew to support this institution? Is privacy so important to political liberty after all? DeBrabander makes the case that privacy is a poor foundation for democracy, that it is a relatively new value that has been rarely enjoyed throughout history-but constantly persecuted-and politically and philosophically suspect. The vitality of the public realm, he argues, is far more significant to the health of our democracy, but is equally endangered-and often overlooked-in the digital age.
We are at a time when international law and the law of war are particularly important. The testing of nuclear weapons that is being used in the rhetoric surrounding threats of war is creating new fears and heightening current tensions. Richard Falk has for decades been an outspoken authority calling for nuclear disarmament and the enforcement of non-proliferation treaties. In this collection of essays, Falk examines the global threats to all humanity posed by nuclear weapons. He is not satisfied with accepting arms control measures as a managerial stopgap to these threats and seeks no less than to move the world back from the nuclear precipice and towards denuclearization. Falk's essays reflect the wisdom and innovative thinking he has brought to his long career as a scholar and activist, as he reminds nuclear weapons states of their obligation under international law and moral imperative to seek nuclear disarmament.
In an era that seeks to challenge the notion of the universality of human rights, this thought-provoking book explores their fundamental nature and considers the work and influence of German legal scholar and constitutional lawyer Robert Alexy, on contemporary jurisprudence and European Union law. What is the justification of balancing versus trading off fundamental rights against other rights and collective goods? Are there utilitarian considerations that can limit the normative force of human rights? Utilising both "ideal" and "critical" perspectives, this innovative book focuses on those inevitable questions which lie at the heart of any contemporary human rights discourse, as the premise of the dual nature of law is developed. A corresponding 'normative' perspective seeks to investigate the broader legal domains of the topic. This analytical book will be a key resource for students and scholars working in the fields of jurisprudence and legal theory, history and philosophy of law and comparative and EU law alike.
Legal reasoning, pronouncements of judgment, the design and implementation of statutes, and even constitution-making and discourse all depend on timing. This compelling study examines the diverse interactions between law and time, and provides important perspectives on how law's architecture can be understood through time. The book reconsiders older work on legal transitions and breaks new ground on timing rules, especially with respect to how judges, legislators and regulators use time as a tool when devising new rules. At its core, The Timing of Lawmaking goes directly to the heart of the most basic of legal debates: when should we respect the past, and when should we make a clean break for the future? This unique resource draws on examples from administrative law, banking law, budget law, constitutional law, criminal law, environmental law, inheritance law, national security law, tax law, and tort law, and will be of interest to academics studying law, political science and economics, as well as to policymakers, legislators, and judges.
Understanding the Nature of Law explores methodological questions about how best to explain law. Among these questions, one is central: is there something about law which determines how it should be theorized? Michael Giudice presents the problem: several methods suggest themselves as suitable to understanding law; however, each method claims unique importance with no need of others. A solution is offered in two key claims. First, many conceptual theories of law are best understood not as the result of conceptual analysis, but as constructive conceptual explanations, emphasizing a crucial role for revision and expansion of ordinary concepts, in ways responsive to new problems and new phenomena. Second, conceptual theories of law can and ought to identify necessary as well as contingent features in the construction of conceptual explanations of law. This novel book explains the importance of conceptual explanation by situating its methods and goals in relation to, rather than in competition with, social scientific and moral theories of law. The book will be of primary interest to both students and academics in legal, political, and moral philosophy. It will also be of interest to students and academics working in the social sciences who are interested in questions about the distinctive character of law
'Rethinking' legal reasoning seems a bold aim given the large amount of literature devoted to this topic. In this thought-provoking book, Geoffrey Samuel proposes a different way of approaching legal reasoning by examining the topic through the context of legal knowledge (epistemology). What is it to have knowledge of legal reasoning? At a more specific level the pursuit of this understanding is conducted through posing a number of questions that are founded on different approaches. What has legal reasoning been? What are the institutional and conceptual legacies of this history? What is the literature and textual heritage? How does it compare with medical reasoning and with reasoning in the humanities? Can it be demystified? In exploring these questions Samuel suggests a number of frameworks that offer some new insights into the nature of legal reasoning. The author also puts forward two key ideas. First, that the legal notion of an 'interest' might perhaps be a very suitable artefact for rethinking legal reasoning; and, secondly, that fiction theory might be the most viable 'epistemological attitude' for understanding, if not rethinking, reasoning in law. This book will be of great interest to academics who are researching legal method and legal reasoning, as well as epistemology of the social sciences and aspects of comparative law. It will also be an insightful text for those interested in legal history and historical perspectives on legal reasoning.
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