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.

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.

The book is dedicated to the theoretical problems concerning ratio legis. In the contexts of legal interpretation and legal reasoning, the two most important intellectual tools employed by lawyers, ratio legis would seem to offer an extremely powerful argument. Declaring the ratio legis of a statute can lead to a u-turn argumentation throughout the lifespan of the statute itself - in parliament, or in practice during court sessions, when it is tested against the constitution. Though the ratio legis argument is widely used, much about it warrants further investigation. On the general philosophical map there are many overlapping areas that concern different approaches to human rationality and to the problems of practical reasoning. Particular problems with ratio legis arise in connection with different perspectives on legal philosophy and theory, especially in terms of the methods that lawyers use for legal interpretation and argumentation. These problems can be further subdivided into particular aspects of activities undertaken by lawyers and officials who use the ratio legis in their work, and the underlying theories. In short, this book examines what ratio legis is, what it could be, and its practical implications.

This book uses role theory to analyze the judicial decisions made by state supreme court judges. Grounded in the fields of anthropology, business management, psychology, and sociology, role theory holds that, for each position an individual occupies in society, he or she creates a role orientation, or a belief about the limits of proper behavior. Judicial role orientation is conceptualized as the stimuli that a judge feels can legitimately be allowed to influence his or her decision-making and, in the case of conflict among influences, what priorities to assign to different decisional criteria. This role orientation is generally seen as existing on a spectrum ranging from activist to restraintist. Using multi-faceted data collection and empirical testing, this book discusses the variation in judges' role orientations, the role that personal institutional structure and judges' backgrounds play in determining judicial orientations, and the degree to which judges' orientations affect their decision-making. The first study to provide cross-institutional research on state supreme court judges, this book expands and advances the literature on judicial role orientation. As such, this book will be of interest to graduate students and researchers studying political science, public policy, law, and the courts.

This volume looks at how courts and the police handle racial discrimination in Europe. The chapters show that beyond legal technique, neither the legislators nor the judges escape from their own emotions when responding to racial discrimination. But, as the authors point out, emotions are not always negative. They can also help in a positive way in judicial interpretation. The study profiles five countries: Germany, UK, Estonia, Portugal and Spain. Each of these belong both to the European Union and to the Council of Europe. Coverage examines the responsibility of the public powers, more specifically of the legislative and judicial power, both of the police and of the judiciary, in persecuting racist behavior. In addition, the authors also consider the increase in racism in groups of citizens. The authors argue that racial justice is a proactive reinforcement of policies, practices, attitudes and actions that lead to equal access to opportunities for all. After reading this book, readers will gain a better understanding of the reasoning of legislators, police and judges when dealing with racial discrimination in Europe today.

This peer-reviewed book features essays on the Armenian massacres of 1915-1916. It aims to cast light upon the various questions of international law raised by the matter. The answers may help improve international relations in the region. In 1915-1916, roughly a million and a half Armenians were murdered in the territory of the Ottoman Empire, which had been home to them for centuries. Ever since, a dispute between Armenians and Turkey has been ongoing over the qualification of the massacres. The contributors to this volume examine the legal nature and consequences of this event. Their investigation strives to be completely neutral and technical. The essays also look at the broader issue of denial. For instance, in Turkey, public speech on the matter can still trigger criminal prosecution whereas in other European States denial of genocide, war crimes and crimes against humanity is criminalized. However, the European Court of Human Rights views criminal prosecution of denial of the Armenian massacres as unlawful. In addition, one essay considers a state's obligation to remember by looking at lessons learnt from the Inter-American Court of Human Rights. Another contributor looks at a collective right to remember and some ideas to move forward towards a solution. Moreover, the book explores the way the Armenian massacres have affected the relationship between Turkey and the European Union.

European integration confronts us with the limits of current constitutional and democratic language. The way out of this impasse will only appear through a refinement of what we consider the European Union to be as a political entity and of our concepts of democracy. In this challenging and thoughtful new book Professor Verhoeven offers a crystal-clear synthesis and analysis of the current state of the European Union as a constitutional project. While she recognizes the continuity of this project with social contract theory and the federal ideal - and uncovers the specific aspects of democracy and constitutionalism the EU has already embraced - she shows how the terms and presuppositions of those persistent conceptual frameworks must be fundamentally revised. At the root of these necessary revisions lies the irreversible onset of multiculturalism and globalisation, twin challenges that force us to reconsider issues of sovereignty and self-governance. Professor Verhoeven does not neglect the much-debated issues at the centre of her topic. Her analysis extends to such critiques as the view of the European constitution as a Court-led process of vertical integration, the meaning of EU citizenship, variability in EU decision-making procedures, the concept of institutional balance, territorial differences in the application of EU law, the whole area of delegated rule-making and the relationship between the European and national legal orders. As a thorough investigation of how democracy and constitutionalism can be reconceptualised in order to meet the challenge of European integration, The European Union in Search of a Democratic and Constitutional Theory will greatly reward the attention oflawyers, policymakers, and scholars in the field.

This book deals with the fundamental semantics of images of Europe, which consist of valences, mirror beliefs and affectivities. This is why it relaunches the importance of the European discourse in its symbolic dimension. As such, it explores the many images of Europe, or rather the many images through which European discourse is actually constituted in daily life, in search of their enunciative responsibility in today's world for determining the current "State of the Union". The identity of the European continent is based on a millenary tension between universalism and particularism: images of Europe have in fact been alternately inspired, over the centuries, by a model of homogeneity - Roman and Carolingian imperial disposition - on the one hand, and by a model of fragmentation - a Europe of city-states, municipalities, regions and small fatherlands - on the other. In the European Union, a political and economic organism, this issue has recently been amplified to the point that it has reentered public debate, and political parties that are only recognizable for being Europeanists or anti-Europeanists are now ubiquitous. In this regard, one major bone of contention is how to portray the quintessential aspects of the European territory, which are either interpreted as "thresholds" to be overcome in the name of a model of United Europe - "integral totality" - or are instead regarded as insurmountable obstacles for a Europe that is irreparably and perhaps, according to anti-Europeanists, fortunately fragmented - "partitive totality". Further, this is to be done without excluding the possibility of contradictory and complementary solutions to these binary visions. In this context the book analyzes various texts in order to obtain a more precise picture of the clash, reveal its semiotic forms, and by doing so, identify a way out of the crisis.

This book focuses on four topical and interconnected, innovative pathways to civil justice within the context of securing and improving access to justice: the use of Artificial Intelligence and its interactions with judicial systems; ADR and ODR tracks in privatising justice systems; the effects of increased self-representation on access to justice; and court specialization and the establishment of commercial courts to counter the trend of vanishing court trials. Top academics and experts from Europe, the US and Canada address these topics in a critical and multidisciplinary manner, combining legal, socio-legal and empirical insights. The book is part of 'Building EU Civil Justice', a five-year research project funded by the European Research Council. It will be of interest to scholars and policymakers, as well as practitioners working in the areas of civil justice, alternative dispute resolution, court systems, and legal tech. The chapters "Introduction: The Future of Access to Justice - Beyond Science Fiction" and "Constituting a Civil Legal System Called "Just": Law, Money, Power, and Publicity" are available open access under a Creative Commons Attribution 4.0 International License via link.springer.com.

This book discusses the relationship between democracy and the financial order from various legal perspectives. Each of the nine contributions adopts a unique perspective on the legal and political challenges brought to the fore by the Global Financial Crisis. This crisis and the ensuing sovereign debt crisis in Europe are only the latest in a long series of financial crises around the globe in recent decades. By their very existence, but also as a result of the political turmoil they have created, these financial crises testify to the well-known tensions between democracy and a market-based economic and financial order. However, what is missing in this debate is an analysis of the role of law for reconciling democracy with a market-based financial order. To fill this lacuna, the book focuses on the controversy surrounding the concept of law, thereby adding another variable to the debate on the relation between democracy and capitalism. Each chapter addresses the concept of law from a particular theoretical angle, be it a full-grown legal theory or an approach in political economy that has a particular view of the law.

This collection of essays, published to coincide with Tony Honore's sixty-fifth birthday, focuses on the areas where Honore's thought has made the most significant contribution: Roman law and jurisprudence. Included are essays by P.S. Atiyah, Zenon Bankowski, John Bell, Peter Birks, John W. Cairs, Hugh Collins, David Daube, W. M. Gordon, J. W. Harris Nicola Lacey, A. D. E. Lewis, Detlef Liebs, G. D. MacCormack, Neil MacCormick, G. Maher, Pieter Norr, Alan Rodger, and Peter Stein.

"Works such as A Law of Her Own expose the injustices in our society, provide different perspectives, and stimulate discussion. . . . Forell and Matthews' contribution to the debate should not be overlooked."
--"Law & Life"

Despite the apparent progress in women's legal status, the law retains a profoundly male bias, and as such contributes to the pervasive violence and injustice against women.

In A Law of Her Own, the authors propose to radically change law's fundamental paradigm by introducing a "reasonable woman standard" for measuring men's behavior. Advocating that courts apply this standard to the conduct of men-and women-in legal settings where women are overwhelmingly the injured parties, the authors seek to eliminate the victimization and objectification of women by dismantling part of the legal structure that supports their subordination.

A woman-based legal standard-focusing on respect for bodily integrity, agency, and autonomy-would help rectify the imbalance in how society and its legal system view sexual and gender-based harassment, rape, stalking, battery, domestic imprisonment, violence, and death.

Examining the bias of the existing "reasonable person" standard through analysis of various court cases and judicial decisions, A Law of Her Own aims to balance the law to incorporate women's values surrounding sex and violence.

The proportionality test, as proposed in Robert Alexy's principles theory, is becoming commonplace in comparative constitutional studies. And yet, the question "are courts justified in borrowing proportionality?" has not been expressly put in many countries where judicial borrowings are a reality. This book sheds light on this question and examines the circumstances under which courts are authorized to borrow from alien legal sources to rule on constitutional cases. Taking the Supreme Federal Court of Brazil - and its enthusiastic recourse to proportionality when interpreting the Federal Constitution - as a case study, the book investigates the normative reasons that could justify the court's attitude and offers a comprehensive overview of its case law on controversial constitutional matters like abortion, same-sex union, racial quotas, and the right to public healthcare. Providing a valuable resource for those interested in comparative constitutional law and legal theory, or curious about Brazilian constitutional law, this book questions the alleged universality of the proportionality test, challenges the premises of Alexy's principles theory, and discloses more than 68 Brazilian Supreme Court decisions delivered from 2003 to 2018 that would otherwise have remained unknown to an English-speaking audience.

The subject of this book is human rights law, focusing on historic achievement of a common standard viewed from a perspective of Pengchun Chang's contributions to the drafting of the Universal Declaration of Human Rights (UDHR). This is an original research, integrating different research methods: inter-disciplinary approaches, historical and comparative methods, and documentary research and so on. The research findings can be described briefly as follows: Chinese wisdom has played an important role in achieving a common standard for the establishment of the international human rights system, which can be seen by exploring P. C. Chang's contributions to the drafting of the UDHR. The target readers are global scholars and students in law, politics, philosophy, international relations, human rights law, legal history, religion and culture. This book will enable these potential readers to have a vivid picture of the Chinese contributions to the international human rights regime and to have a better understanding of the significance of the traditional Chinese culture and P. C. Chang's human rights philosophy of pluralism.

American Supreme Court jurisprudence in the area of religious freedom has been, for the most part, predicated upon a form of liberal theory commonly known as "procedural liberalism." Faith on Trial explains how the Court's reliance on this theoretical basis hampers its ability to adequately address the reality of religion as a pluralistic social institution. David E. Guinn provides a detailed critique of procedural liberalism by thinkers such as Charles Taylor and Iris Marion Young-tapping into the idea of "deep diversity" suggested by Taylor-through the development of a new theoretical model that reconceptualizes Supreme Court jurisprudence. This challenging work demonstrates a practical way to resolve the problems inherent in much existing religious freedom jurisprudence and calls for a reformation of Supreme Court thinking on the First Amendment.

A Solid Introduction to Legal PhilosophyThis lucid, wide-ranging account traces the evolution of the philosophy of law and offers an introduction to its primary authors. Berolzheimer is especially interested in the law's ability to serve as a progressive humanitarian force. This is evident, for example, in the contribution it has made to the emancipation of repressed social classes. "These fundamental questions are discussed by Dr. Berolzheimer in a work of remarkable learning... I have before me as I write the works of Stahl, Krause, and Lasson, dealing with the Philosophy of Law. They are not comparable with this volume in point of research." --Sir John Macdonell, Introduction, xxixFritz Berolzheimer 1869-1920] was a German legal philosopher and author of the five-volume System der Rechts- und Wirtschaftsphilosophie (1904-07). This work is the second volume of that set. He was managing editor of the important philosophy of law journal, "Archiv fur Rechts-und Wirtschaftsphilosophie" and president of the International Society of Legal and Economic Philosophy in Berlin.Rachel Szold Jastrow d. 1926] was a suffragist and sister of Henrietta Szold, founder of Hadassah, the Women's Zionist Organization of America. Her husband, Joseph Jastrow, was a professor of psychology at the University of Wisconsin.Sir John Macdonell 1846-1921] was an eminent British jurist and Quain Professor of Comparative Law at University College, London.Albert Kocourek 1875-1952] was a Professor of Law at Northwestern University.CONTENTSIntroductionCh. I. Origins of Oriental CivilizationCh. II. The Ancient Commonwealth: Greek CivilizationCh. III. The Civic Empire of Ancient Rome and the Moralization of Roman LawCh. IV. The Bondage of MediaevalismCh. V. Civic Emancipation: The Rise and Decline of "Natural Law"Ch. VI. The Emancipation of the Proletariat. Encroachment upon the Philosophy of Law by Economic RealismCh. VIII. The Sociological Reconstruction of Legal Philosoph

This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? This is the first book that seeks to offer general answers to these questions and thus gives form in the law its due. The answers not only provide articulate conversancy with the subject but also reveal insights into the nature of law itself, the oldest and foremost problem in legal theory and allied subjects.

This open access book is about the perception of the independence of the judiciary in Europe. Do citizens and judges see its independence in the same way? Do judges feel that their independence is respected by the users of the courts, by the leadership of the courts and by politicians? Does the population trust the judiciary more than other public institutions, or less? How does independence of the judiciary work at the national level and at the level of the European Union? These interrelated questions are particularly relevant in times when the independence of the judiciary is under political pressure in several countries in the European Union, giving way to illiberal democracy. Revealing surveys among judges, lay judges and lawyers - in addition to regular surveys of the European Commission - provide a wealth of information to answer these questions. While the answers will not please everyone, they are of interest to a wide audience, in particular court leaders, judges, lawyers, politicians and civil servants.

This volume highlights important aspects of the complex relationship between common language and legal practice. It hosts an interdisciplinary discussion between cognitive science, philosophy of language and philosophy of law, in which an international group of authors aims to promote, enrich and refine this new debate. Philosophers of law have always shown a keen interest in cognitive science and philosophy of language in order to find tools to solve their problems: recently this interest was reciprocated and scholars from cognitive science and philosophy of language now look to the law as a testing ground for their theses. Using the most sophisticated tools available to pragmatics, sociolinguistics, cognitive sciences and legal theory, an interdisciplinary, international group of authors address questions like: Does legal interpretation differ from ordinary understanding? Is the common pragmatic apparatus appropriate to legal practice? What can pragmatics teach about the concept of law and pervasive legal phenomena such as testimony or legal disagreements?

Judges and courts do a considerable amount of harm in applying some criminal laws and policies, such as the felony murder rule, mandatory sentences, and the drug war. These and other positivist policies do not lessen crime, but instead, teach criminogenic messages contrary to what a magisterial criminal policy would teach. American judges apply criminal laws and policies that teach wrong lessons to users of the justice system, including criminals themselves. The source of this lies both in judicial passivity and legislative indifference. Judge Gerber expresses his confidence that a justice-oriented system can be achieved when politicians surrender control of the justice system to professionals in the field.

American judges apply criminal laws and policies that teach wrong lessons to users of the justice system, including the criminals themselves. These wrong lessons include mathematical and mandatory sentencing, plea bargaining, the death penalty, the felony murder rule, marijuana prohibitions, the drug war, and the penchant for solving crime by building more and bigger prisons. The source of these harms lies both in judicial passivity and legislative indifference to the costs and shortcomings of anti-crime policies, usually because of nothing but electoral concerns. The result is a system of laws and policies that really have little to do with lessening crime but much to do with politics. The book contrasts this positivist criminal justice system with a justice-oriented magisterial system which Judge Gerber believes, can be achieved if politicians surrender control of the justice system to professionals and experts in that field. This book has applications for academic as well as professional use and will also be of interest to some general readers who are interested in the legal system.

This book studies the practical experience and theoretical development of rule of law in China, and provides fundamental theory for the construction of rule of law in contemporary China. The author examines the rule of law by exploring the entire legal system, and highlighting various aspects including the legislation, law enforcement and supervision systems. Readers will also discover the author's strong opinions on scientific legislation, legal government, judicial reform, and the culture of rule of law. This highly readable book will appeal to both general readers and researchers interested in rule of law in China.

This study analyzes the process of constitutional interpretation, that is, the methodology by which the Supreme Court goes about interpreting the Constitution, and offers a comprehensive view of constitutional law through the lens of history, political science, and jurisprudence. Shaman examines the practice of creating meaning for the Constitution, the dichotomy of legal formalism and realism, the levels of judicial scrutiny, the perception of reality, and the puzzle of legislative motive. While the book traces the historical development of constitutional law, its main focus is on modern jurisprudence, including analyses of the major themes of constitutional interpretation developed by the Warren, Burger, and Rehnquist Courts.

Shaman details the Warren Court's move to a more realistic jurisprudence and its development of a multi-level system of judicial review that has become increasingly more complex under the Burger and Rehnquist Courts. He critiques the Supreme Court's reversion in recent years to an old-fashioned formalistic jurisprudence and the growing tendency of the Court to look to the past rather than to future to interpret the Constitution. The book also includes discussion of recent major doctrinal developments such as constitutional theory underlying Supreme Court decisions on gender discrimination, discrimination on the basis of sexual preference, the right to die, abortion, and freedom of speech.

How should disability justice be conceptualised, not by orthodox human rights or capabilities approaches, but by a legal philosophy that mirrors an African relational community ideal? This book develops the first comprehensive answer to this question through the contemporary literature on African philosophy, which is relied upon to construct a legal philosophy of disability justice comprising of ethical ideals of community, human relationships and obligations. From these ideals, an African legal philosophy of disability justice is offered as a criterion for critically evaluating existing laws, legal and political institutions, as well as providing an ethical basis for creating new ones to ensure that they are inclusive to people with disabilities. In taking an alternative perspective on the subject, the book outlines and emphasises the need for a new public culture of obligations owed to people with disabilities, highlighting both the prospects and difficulties of achieving the ideal of disability justice that continues to elude the lived experiences of millions of Africans today. Oche Onazi's An African Path to Disability Justice is the first book-length exploration of disability in the light of African ethics, as contrasted with the human rights and capabilities frameworks. Of particular interest are Onazi's thoughtful reflections on how various conceptions of community salient in African moral philosophy--including group-based, reciprocal and relational--bear on what we owe to the disabled. --Thaddeus Metz, Distinguished Professor, University of Johannesburg

Language policies are increasingly acknowledged as being a necessary component of many decisions taken in the areas of the labor market, education, minority languages, mobility, and social inclusion of migrants. They can affect the democratic control of political organizations, and they can either entrench or reduce inequalities. These are the central topics of this book. Economists, philosophers, political scientists, and sociolinguists discuss - from an interdisciplinary perspective - the distributive socio-economic effects of language policies, their impact on justice and inequality at the national or international level, as well as the connection between language choices and an inclusive access to public services. The range of social and economic issues raised by linguistic diversity in contemporary societies is large, and this requires new approaches to tackle them. This book provides new input to design better, more efficient, and fair language policies in order to manage linguistic diversity in different areas. Topics covered include: theoretical models of linguistic justice and linguistic disadvantage; the assessment of the socio-economic consequences of language policies; the evaluation of the costs, benefits, and degree of inclusion of language planning measures; the politics of migrants' linguistic integration; as well as multilingualism and economic activities. These topics are discussed in different contexts, including the areas inhabited by linguistic minorities, cities receiving migrants, and supranational organizations.