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Questions of religious liberty have become flashpoints of controversy in virtually every area of life around the world. Despite the protection of religious liberty at both national and supranational levels, there is an increasing number of conflicts concerning the proper way to recognize it - both in modern secular states and in countries with an established religion or theocratic mode of government. This book provides an analysis of the general concept of religious liberty along with a close study of important cases that can serve as test beds for conflict resolution proposals. It combines the insights of both pure academics and experienced legal practitioners to take a fresh look at the nature, scope and limits of religious liberty. Divided into two parts, the collection presents a blend of legal and philosophical approaches, and draws on cases from a wide range of jurisdictions, including Brazil, India, Australia, the USA, the Netherlands, and Canada. Presenting a broad range of views, this often provocative volume makes for fascinating reading for academics and researchers working in the areas of law and religion, legal philosophy and human rights.
This book centres on Samuel Pufendorf's (1632-1694) moral and political philosophy, a subject of recently renewed interest among intellectual historians, philosophers and legal scholars in the English-speaking world. Pufendorf's significance in conceptualizing sociability in a way that ties moral philosophy, the theory of the state, political economy, and moral psychology together has already been acknowledged, but this book is the first systematic investigation of the moral psychological underpinnings of Pufendorf's theory of sociability in their own right. Readers will discover how Pufendorf's psychological and social explanation of sociability plays a crucial role in his natural law theory. By drawing attention to Pufendorf's scattered remarks and observations on human psychology, a new interpretation of the importance of moral psychology is presented. The author maintains that Pufendorf's reflection on the psychological and physical capacities of human nature also matters for his description of how people adopt sociability as their moral standard in practice. We see how, since Pufendorf's interest in human nature is mainly political, moral psychological formulations are important for Pufendorf's theorizing of social and political order. This work is particularly useful for scholars investigating the multifaceted role of passions and emotions in the history of moral and political philosophy. It also affords a better understanding of what later philosophers, such as Smith, Hume or Rousseau, might have find appealing in Pufendorf's writings. As such, this book will also interest researchers of the Enlightenment, natural law and early modern philosophy.
The essays in this volume offer a reassessment of Jeremy Bentham's strikingly original legal philosophy. Early on, Bentham discovered his 'genius for legislation' - 'legislation' included not only lawmaking and code writing, but also political and social institution building and engineering of public spaces for effective control of the exercise of political power. In his general philosophical work, Bentham sought to articulate a public philosophy to guide and direct all of his 'legislative' efforts. Part I explores the philosophical foundations of his public philosophy: his theory of meaning and framework for analysis and definition of key concepts, his theory of human affections and motivations, and his utilitarian theory of value. It is argued that, while concepts of pleasure and happiness play nominal roles in his theory of value, concepts of publicity, equality, and interests emerge as the dominant concepts of his public philosophy. Part II explores several dimensions of Bentham's jurisprudence, including his radically revised command model of law, his early reflections on justice and law in adjudication, his theories of judicial evidence, constitutional rights, the rule of law, and international law. The concluding essay demonstrates the centrality of the notion of publicity in his moral, legal and political thought. Emerging from this study is a positivist legal theory and a utilitarian moral-political philosophy that challenge in fundamental ways contemporary understandings of those doctrines.
Building Better Beings presents a new theory of moral responsibility. Beginning with a discussion of ordinary convictions about responsibility and free will and their implications for a philosophical theory, Manuel Vargas argues that no theory can do justice to all the things we want from a theory of free will and moral responsibility. He goes on to show how we can nevertheless justify our responsibility practices and provide a normatively and naturalistically adequate account of of responsible agency, blame, and desert. Three ideas are central to Vargas' account: the agency cultivation model, circumstantialism about powers, and revisionism about responsibility and free will. On Vargas' account, responsibility norms and practices are justified by their effects. In particular, the agency cultivation model holds that responsibility practices help mold us into creatures that respond to moral considerations. Moreover, the abilities that matter for responsibility and free will are not metaphysically prior features of agents in isolation from social contexts. Instead, they are functions of both agents and their normatively structured contexts. This is the idea of circumstantialism about the powers required for responsibility. Third, Vargas argues that an adequate theory of responsibility will be revisionist, or at odds with important strands of ordinary convictions about free will and moral responsibility. Building Better Beings provides a compelling and state-of-the-art defense of moral responsibility in the face of growing philosophical and scientific skepticism about free will and moral responsibility.
This book offers an Indigenous supplement to the rich and growing area of visual legal scholarship. Organized around three narratives, each with an associated politico-poetic reading, the book addresses three major global issues: climate change, the trade in human body parts and bio-policing. Manifesting and engaging the traditional storytelling mode of classical Indigenous ontology, these narratives convey legal and political knowledge, not merely through logical argument, but rather through the feelings of law and the understanding of lawful behaviour produced by their rhythm. Through its own performativity, therefore, the book demonstrates how classical Indigenous legal traditions remain vital to the now pressing challenge of making peace with the earth.
The question of how to distribute benefits and burdens between
different individuals and groups has exercised some of the greatest
philosophers of the past, and dominates the study of contemporary
political philosophy. This volume brings together some of the most
creative contributions to one of the most intellectually fertile,
and politically significant, areas of debate in practical
Beginning with two classic discussions by Locke and Hume, the
volume then turns to contemporary theories of social justice,
focusing on Rawls, Nozick, Dworkin, and some of their most
influential critics. It concludes with a set of provocative
readings on various specific issues - the family, market
incentives, world poverty, cultural rights, and future generations
- that have extended or challenged common conceptions of
With an introductory essay and a guide to further reading, Social Justice will appeal to students in law, politics, and normative economics, as well as philosophy.
This book investigates how sustainability informs key principles and concepts of domestic and international law. It calls for the recognition of ecological sustainability as a fundamental principle to guide the entire legal system rather than just environmental legislation. To this end, the book makes a contribution to global environmental constitutionalism, a rapidly growing area within comparative and international environmental law and constitutional law. This 2nd edition has been fully revised and updated to take account of recent developments and new case law. The book will be a valuable resource for students, researchers and policy makers working in the areas of environmental law and governance.
From Anthony Trollop to Sinclair Lewis, and from Jane Austen to James Joyce and John Steinbeck, many important novels touch on fundamental questions about the role of money in human affairs. These questions are explored in this volume through the lens of law and literature. The sixteen essays collected here, by important theorists from a range of disciplines, shed new light on the impact of economic change, from the Industrial Revolution to the Great Depression. Students of economics and business will gain a new appreciation of literature's insights on singular events and human emotions. Similarly, scholars and students of literature will gain an appreciation for the power of law and economics to inform literary and social analysis. The volume's focus on novels about money and economic upheaval showcases the power of the disciplinary marriage of law and literature.
According to the dominant account of rights, there are two ways to permissibly kill people: they have done something to forfeit their right to life, or their rights are outweighed by the significantly greater cost of respecting them. Contemporary just war theorists tend to agree that it is difficult to justify killing in the second way. Thus, they focus on the conditions under which rights might be forfeited. But it has proven hard to defend an account of forfeiture that permits killing when and only when it is morally justifiable. In The Mechanics of Claims and Permissible Killing in War, Alec D. Walen develops an alternative account of rights according to which rights forfeiture has a much smaller role to play. It plays a smaller role because rights themselves are more contextually contingent. They systematically reflect the different kinds of claims people can make on an agent. For example, those who threaten to cause harm without a right to do so have weaker claims not to be killed than innocent bystanders or those who have a right to threaten to cause harm. By framing rights as the output of a balance of competing claims, and by laying out a detailed account of how to balance competing claims, Walen provides a more coherent account of when killing in war is permissible.
When is it morally permissible to engage in self-defense or the defense of others? Jonathan Quong defends a variety of novel ideas in this book about the morality of defensive force, providing an original philosophical account of the central moral principles that should regulate its use. We cannot understand the morality of defensive force, he reasons, until we ask and answer deeper questions about how the use of defensive force fits with a more general account of justice and moral rights. In developing this stance, Quong presents new views on liability, proportionality, and necessity. He argues that self-defense can sometimes be justified on the basis of an agent-relative prerogative to give greater weight to one's own life and interests, contrary to the dominant view in the literature. Additionally Quong develops a novel conception of individual rights against harm. Unlike some, who believe that our rights against harm are fact-relative, he argues that our rights against being harmed by others must, in certain respects, be sensitive to the evidence that others can reasonably be expected to possess. The book concludes with Quong's extended defense of the means principle, a principle that prohibits harmfully using other persons' bodies or other rightful property unless those persons are duty bound to permit this use or have otherwise waived their claims against such use.
In recent decades, new international courts and other legal bodies have proliferated as international law has broadened beyond the fields of treaty law and diplomatic relations. This development has not only triggered debate about how authority may be held by institutions beyond the state, but has also thrown into question familiar models of authority found in legal and political philosophy. The essays in this book take a philosophical approach to these developments, debates and questions. In doing so, they seek to clarify the relevant issues underpinning, as well as develop possible solutions to the problem of how legal authority may be constructed beyond the state.
This book examines the roles played by narrative and culture in the construction of legal cases and their resolution. It is articulated in two parts. Part I recalls epistemological turns in legal thinking as it moves from theory to practice in order to show how facts are constructed within the legal process. By combining interdisciplinary paradigms and methods, the work analyses the evolution of facts from their expression by the client to their translation within the lawyer-client relationship and the subsequent decision of the judge, focusing on the dynamic activity of narrative construction among the key actors: client, lawyer and judge. Part II expands the scientific framework toward a law-and-culture-oriented perspective, illustrating how legal stories come about in the fabric of the authentic dimensions of everyday life. The book stresses the capacity of laypeople, who in this activity are equated with clients, to shape the law, dealing not just with formal rules, but also with implicit or customary rules, in given contexts. By including the illustration of cases concerning vulnerable clients, it lays the foundations for developing a socio-clinical research programme, whose aims including enabling lay and expert actors to meet for the purposes of improving forms of collective narrations and generating more just legal systems.
View the Table of Contents. Read the Preface.
"An outstanding contribution to the scholarly debates on the
interpretation of the First Amendment religion clauses. [Ravitch's]
biting critical analyses of the currently popular principles of
neutrality and liberty are especially important."
"Masters of Illusion is filled with penetrating analysis and
original insights about freedom of religion. Ravitch's discussions
of neutrality, sex education, religious symbols, and his proposal
for handling freedom of religion issues are particularly
Many legal theorists and judges agree on one major premise in the field of law and religion: that religion clause jurisprudence is in a state of disarray and has been for some time. In Masters of Illusion, Frank S. Ravitch provocatively contends that both hard originalism (a strict focus on the intent of the framers) and neutrality are illusory in religion clause jurisprudence, the former because it can not live up to its promise for either side in the debate and the latter because it is simply impossible in the religion clause context. Yet these two principles have been used in almost every Supreme Court decision addressing religion clause questions.
Ravitch unpacks the various principles of religion clause interpretation, drawing on contemporary debates such as school prayer and displaying the Ten Commandments on courthouses, to demonstrate that the neutrality principle does not work in a pluralistic society. When defined by large, overarching principles of equality andliberty, neutrality fails to account for differences between groups and individuals. If, however, the Court drew on a variety of principles instead of a single notion of neutrality to decide whether or not laws facilitated or discouraged religious practices, the result could be a more equitable approach to religion clause cases.
There are two kinds of knowledge law school teaches: legal rules on
the one hand, and tools for thinking about legal problems on the
other. Although the tools are far more interesting and useful than
the rules, they tend to be neglected in favor of other aspects of
the curriculum. In "The Legal Analyst," Ward Farnsworth brings
together in one place all of the most powerful of those tools for
thinking about law.
These 13 essays explore Bruno Latour's legal theory from a variety of disciplinary perspectives. They combine analytical tools drawn from Latour's actor-network theory developed in Science in Action, Reassembling the Social and The Making of Law with the philosophical anthropology of the Moderns in An Inquiry into Modes of Existence to blaze a new trail in legal epistemology.
In many ways the crucial point about law is the question of whether the law is legitimate as this ensures that the citizens of a society (voluntarily) obey the law. Law and legitimacy is an anthology arising from an interdisciplinary investigation into the relationship between law and legitimacy. In dealing with this time honored problematic, the collection offers a variety of new perspectives and a range of issues are discussed, including the legitimacy of the international criminal court, EU's regulation of smoking and tobacco and the protection of consumers. The authors draw not only on legal sources in their investigations, but also on philosophy, history and sociology for a truly interdisciplinary approach
Oxford Studies in Agency and Responsibility is a series of volumes presenting outstanding new work on a set of connected themes, investigating such questions as: * What does it mean to be an agent? * What is the nature of moral responsibility? Of criminal responsibility? What is the relation between moral and criminal responsibility (if any)? * What is the relation between responsibility and the metaphysical issues of determinism and free will? * What do various psychological disorders tell us about agency and responsibility? * How do moral agents develop? How does this developmental story bear on questions about the nature of moral judgment and responsibility? * What do the results from neuroscience imply (if anything) for our questions about agency and responsibility? OSAR thus straddles the areas of moral philosophy and philosophy of action, but also draws from a diverse range of cross-disciplinary sources, including moral psychology, psychology proper (including experimental and developmental), philosophy of psychology, philosophy of law, legal theory, metaphysics, neuroscience, neuroethics, political philosophy, and more. It is unified by its focus on who we are as deliberators and (inter)actors, embodied practical agents negotiating (sometimes unsuccessfully) a world of moral and legal norms.
A central theme of law and society is that people's ideas about law and the decisions they make to mobilize law are shaped by community norms and cultural context. But this was not always an established concept. Among the first empirical pieces to articulate this theory was David Engel's 1984 article, 'The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community'. Over thirty years later, this article is now widely considered to be part of the law and society canon. This book argues that Engel's article succeeds so brilliantly because it integrates a wide variety of issues, such as cultural transformation, attitudes about law, dispute processing, legal consciousness, rights mobilization, inclusion and exclusion, and inequality. Contributors to this volume explore the influence of Engel's important work, engaging with the possibilities in its challenging hypotheses and provocative omissions related to the legal system and legal process, class conflict and difference, and law in other cultures.
Pressing ethical issues are at the foreground of newfound knowledge of how the brain works, how the brain fails, and how information about its functions and failures are addressed, recorded and shared. In Neuroethics: Anticipating the Future, a distinguished group of contributors tackle current critical questions and anticipate the issues on the horizon. What new balances should be struck between diagnosis and prediction, or invasive and non-invasive interventions, given the rapid advances in neuroscience? Are new criteria needed for the clinical definition of death for those eligible for organ donation? What educational, social and medical opportunities will new neuroscience discoveries bring to the children of tomorrow? As data from emerging technologies are made available on public databases, what frameworks will maximize benefits while ensuring privacy of health information? How is the environment shaping humans, and humans shaping the environment? These challenging questions and other future-looking neuroethical concerns are discussed in depth. Written by eminent scholars from diverse disciplines - neurology and neuroscience, ethics, law, public health, and philosophy - this new volume on neuroethics sets out the conditions for active consideration. It is essential reading for the fields of neuroethics, neurosciences and psychology, and an invaluable resource for physicians in neurology and neurosurgery, psychiatry, paediatrics, and rehabilitation medicine, academics in humanities and law, and health policy makers.
Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion presume an answer to the question of when personhood begins? Can a law which permits late abortion but not infanticide be morally justified? These are just some of the questions this book sets out to address. With an extended analysis of the moral and legal status of abortion, Kate Greasley offers an alternative account to the reputable arguments of Ronald Dworkin and Judith Jarvis Thomson and instead brings the philosophical notion of 'personhood' to the foreground of this debate. Structured in three parts, the book will (I) consider the relevance of prenatal personhood for the moral and legal evaluation of abortion; (II) trace the key features of the conventional debate about when personhood begins and explore the most prominent issues in abortion ethics literature: the human equality problem and the difference between abortion and infanticide; and (III) examine abortion law and regulation as well as the differing attitudes to selective abortion. The book concludes with a snapshot into the current controversy surrounding the scope of the right to conscientiously object to participation in abortion provision.
Mounting a lawsuit against someone who has wronged you is a prospect no less fearful than being on the receiving end of such a lawsuit. Litigation in the courts has a reputation for being a byzantine process far removed from ordinary life, often failing to address people's real grievances while adding to their pain. Yes, there is money to be had if you win. But beyond that, what is it all in aid of? In this book John Gardner argues that, in spite of their legal intricacy, many of the questions that perennially occupy the courts in civil cases are actually timeless puzzles about the human condition. The architecture of the law of torts and the law of contract turns out to track the contours of personal life much more closely than you might expect. Using a wide range of examples from literature and life as well as law, Gardner explores big questions about our relationships to our own pasts and our own futures as well as to other people. What are friends for? Why does it matter how your actions turn out? What is the good of saying sorry? Why regret your mistakes? How can anyone be compensated for an irreversible loss? Why would you want to hold onto the life you already have? And what does any of this have to do with all those protracted legal disputes about damaged cars, ruined holidays, and leaky roofs?
Should laws about sex and pornography be based on social conventions about what is disgusting? Should felons be required to display bumper stickers or wear T-shirts that announce their crimes? This powerful and elegantly written book, by one of America's most influential philosophers, presents a critique of the role that shame and disgust play in our individual and social lives and, in particular, in the law.
Martha Nussbaum argues that we should be wary of these emotions because they are associated in troubling ways with a desire to hide from our humanity, embodying an unrealistic and sometimes pathological wish to be invulnerable. Nussbaum argues that the thought-content of disgust embodies "magical ideas of contamination, and impossible aspirations to purity that are just not in line with human life as we know it." She argues that disgust should never be the basis for criminalizing an act, or play either the aggravating or the mitigating role in criminal law it currently does. She writes that we should be similarly suspicious of what she calls "primitive shame," a shame "at the very fact of human imperfection," and she is harshly critical of the role that such shame plays in certain punishments.
Drawing on an extraordinarily rich variety of philosophical, psychological, and historical references--from Aristotle and Freud to Nazi ideas about purity--and on legal examples as diverse as the trials of Oscar Wilde and the Martha Stewart insider trading case, this is a major work of legal and moral philosophy.
This book explains why we should stop thinking of freedom as limited to a right to be left alone. It explores how Kantian philosophy and Jewish thought instead give rise to a concept of positive freedom. At heart, freedom is inextricably linked to the obligation to respect the autonomy and dignity of others. Freedom thus requires relationships with others and provides an important source of meaning in liberal democratic societies. While individualism is said to foster detachment, positive freedom fosters relations. Moving from moral theory to law, duties are seen as intrinsic to rights. The book considers test cases involving the law of expression, regarding authorial rights and women's prayer at Jerusalem's holy site of the Western Wall. Affirmative duties of respect are essential. Rights held by copyright owners require that all authors - including so-called users - are shown respect. Moreover, rights held by the authorities at the Western Wall require that all worshippers - including those whose interpretation of Jewish law differs from that adopted by the authorities - are respected.
Crime is a source of endless fascination and fear. Yet behind the apparent consensus that crime must be fought, there is considerable conflict about what should or should not be treated as criminal, and even the most shocking crimes can inspire divisive debate. This concise book explores the seemingly simple, common-sense concept of crime revealing the huge complexities, ambiguities and tensions that lie beneath it. Criminal law is often at odds with different moral perspectives and the practices of different cultures. The mass media distort the picture profoundly, as do politicians in pursuit of law and order votes. The criminal justice system tackles only a limited range of crimes almost entirely ones committed by the poor and relatively powerless while often neglecting the most dangerous and harmful activities of corporations and states, from the carnage of unjust wars to the tragedies engendered by austerity. It is only by examining the multiple and varied perspectives on crime that we can begin to understand and respond appropriately to this social phenomenon. Written by a world-leading criminologist, this insightful book will be an invaluable and captivating introduction for students and interested readers of criminology, law, sociology and politics.
As a distinct scholarly contribution to law, feminist legal theory is now well over three decades old. Those three decades have seen consolidation and renewal of its central concerns as well as remarkable growth, dynamism and change. This Companion celebrates the strength of feminist legal thought, which is manifested in this dynamic combination of stability and change, as well as in the diversity of perspectives and methodologies, and the extensive range of subject-matters, which are now included within its ambit. Bringing together contributors from across a range of jurisdictions and legal traditions, the book provides a concise but critical review of existing theory in relation to the core issues or concepts that have animated, and continue to animate, feminism. It provides an authoritative and scholarly review of contemporary feminist legal thought, and seeks to contribute to the ongoing development of some of its new approaches, perspectives, and subject-matters. The Companion is divided into three parts, dealing with 'Theory', 'Concepts' and 'Issues'. The first part addresses theoretical questions which are of significance to law, but which also connect to feminist theory at the broadest and most interdisciplinary level. The second part also draws on general feminist theory, but with a more specific focus on debates about equality and difference, race, culture, religion, and sexuality. The 'Issues' section considers in detail more specific areas of substantive legal controversy.
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