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Happiness and the law. At first glance, these two concepts seem to
have little to do with each another. To some, they may even seem
diametrically opposed. Yet one of the things the law strives for is
to improve people's quality of life. To do this, it must first
predict what will make people happy. Yet happiness research shows
that, time and time again, people err in predicting what will make
them happy, overestimating the import of money and mistaking the
circumstances to which they can and cannot adapt.
In Aristotle and Law, George Duke argues that Aristotle's seemingly dispersed statements on law and legislation are unified by a commitment to law's status as an achievement of practical reason. This book provides a systematic exposition of the significance and coherence of Aristotle's account of law, and also indicates the relevance of this account to contemporary legal theory. It will be of great interest to scholars and students in jurisprudence, philosophy, political science and classics.
This is the second volume of Oxford Studies in Political Philosophy. Since its revival in the 1970s political philosophy has been a vibrant field in philosophy, one that intersects with jurisprudence, normative economics, political theory in political science departments, and just war theory. OSPP aims to publish some of the best contemporary work in political philosophy and these closely related subfields. This volume features eight papers and an introduction. The papers address a range of central topics and represent cutting edge work in the field. They are grouped into three main themes: ideal theory, the moral assessment of states, and issues in social reliations.
Since the Second World War, dignity has increasingly been recognized as an important moral and legal value. Although important examples of dignity-based arguments can be found in western European and North American case law and legal theory, the dignity jurisprudence of the Constitutional Court of South African is widely considered to be the most sweeping in the world. In part, this is related to the unique provisions of the South African Constitution in areas such as socioeconomic rights and allowing dignity to be taken into the sphere of economic justice as well as that of human rights. This book brings together the first sixteen years of constitutional jurisprudence addressing the meaning, role, and reach of dignity in the law of South Africa as a multiracial democracy. The case law is coupled with analysis from a range of selected contributors. The book will therefore be a crucial source for anyone seeking to evaluate dignity, whether in law or in human life more broadly.
This volume examines the relationship between law and sacrifice as a crucial nexus for theorizing the dynamics of creation, destruction, transcendence, and violence within the philosophical and legal discourse of western society. At a time of populist political unrest, what philosophical and theoretical resources are available for conceptualizing the discontent that seems to emanate from practically every sphere of society? What narrative strategies have been employed within literary, theological, philosophical, and legal discourse to tame or mystify human violence? Engaging with the work of preeminent theorists of sacrifice, such as Georges Bataille, Rene Girard, Giorgio Agamben, and Jacques Derrida this collection examines from an interdisciplinary perspective the sacrificial logic that characterizes the cultural and political dynamics of law in society. The book will be of interest to students and scholars in the field of legal theory and philosophy.
Being and Duty is comprised of three components that: a) analyze the creative contribution to the theory of imperatives and norms provided by 20th-century Polish researchers; b) summarize their reflections and considerations; and c) offer a collection of the classic writings of Polish authors of the time, illustrating that their research covered practically the whole scope of the theory of imperatives and norms. Contents include: the preferential situation * preferences and impulses * decisions and tendencies * the verbalization of preferences - imperatives * the axiological situation - evaluations * the obligational situation * the genesis of the obligation * criteria of factuality of obligation * the gradation of obligations * the verbalization of obligations - norms * norms and consultatives * instructions and optatives * the imperative-normative argumentation.
This is a book about the legal fiction that sometimes we know what we don't. The willful ignorance doctrine says defendants who bury their heads in the sand rather than learn they're doing something criminal are punished as if they knew. Not all legal fictions are unjustified, however. This one, used within proper limits, is a defensible way to promote the aims of the criminal law. Preserving your ignorance can make you as culpable as if you knew what you were doing, and so the interests and values protected by the criminal law can be promoted by treating you as if you had knowledge. This book provides a careful defense of this method of imputing mental states based on equal culpability. On the one hand, the theory developed here shows why the willful ignorance doctrine is only partly justified and requires reform. On the other hand, it demonstrates that the criminal law needs more legal fictions of this kind. Repeated indifference to the truth may substitute for knowledge, and very culpable failures to recognize risks can support treating you as if you took those risks consciously. Moreover, equal culpability imputation should also be applied to corporations, not just individuals. Still, such imputation can be taken too far. We need to determine its limits to avoid injustice. Thus, the book seeks to place equal culpability imputation on a solid normative foundation, while demarcating its proper boundaries. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing need for reform.
The essays selected for this volume focus on issues that arise when attempting to design, review and undertake research involving human participants who are experiencing a private or public emergency. The main themes discussed by the essays are: the distinctive and significant ethical questions as to how research participants can be treated during emergency settings; the ethical challenges raised by emergencies for researchers undertaking research and its effects on the nature of research pursued; and procedural obstacles raised by emergencies which can affect the quality of good research ethics review. The volume is unique in that it is the first collection to exclusively deal with all of the central ethical aspects of conducting human subject research in the context of emergency.
Contractual and fiduciary relationships are the two primary mechanisms through which the law facilitates coordinated pursuit of our personal interests. These fields are often represented in oppositional terms, and many accept the distinction that contract law allows an individual to pursue their interests independently, while fiduciary law allows an individual to pursue their interests in a dependent or interdependent way. Relying on this distinction, however, seems to suggest that the boundaries between the fields of contract and fiduciary law are fixed rather than fluid. Bringing together leading theorists to analyse critically important philosophical questions at the intersection of contract and fiduciary law, Contract, Status, and Fiduciary Law demonstrates that popular characterizations of the relationship between contract and fiduciary law are overly simplistic. By considering how contract and fiduciary law interact, and not just how they differ, the contributors to this volume offer new insights into a range of topics, including: status relationships, voluntary undertakings, duties of loyalty, equity, employment law, tort law, the law of remedies, political theory, and the theory of the firm.
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.
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.
This collection of essays brings together the very best philosophical and legal writings on procedural justice over the last half century. Core concepts in Anglo-American jurisprudence, such as equal protection, due process, and the rule of law, are explained and criticized. The articles collected in this volume deal with the distinctive branch of justice that involves norms and processes of applying law to citizens. Authors from a variety of legal and philosophical backgrounds analyze such values as transparency, predictability, and even-handedness in law-making, law-enforcement, and adjudication. Considerable attention is also given to the complex ways in which concerns for justice in the application of the law intersect with long-standing concerns for justice in the content of law. There is also considerable discussion of how best to understand equal protection in debates about gender and racial discrimination. Authors include John Rawls, Martha Minow, Jeremy Waldron, Onora O'Neill, Joseph Raz, and Thomas Scanlon.
Can someone be a good person yet act in a professional role that may involve deception, procedural trickery, withholding information, and working on behalf of terrible people and institutions? This question is at the heart of legal ethics. Using cases from around the common-law world, W. Bradley Wendel looks at issues including confidentiality, the moral responsibility of lawyers, and truth and deception in advocacy. He then examines the classic questions of philosophy of law, including the nature of law, positivism, natural law, the relationship between law and morality, unjust legal systems, and the obligation to obey the law. Finally, he considers the ethical issues surrounding the role of lawyers, including criminal defense and prosecution, civil litigation, counseling clients on the law, and representing corporations. Combining the theoretical, philosophical, and practical, his book will be of vital interest to students of law, the philosophy of law, ethics, and political philosophy.
The Civil Rights and feminist movements of the sixties did not leave legal theory untouched. Over the following two decades, the Critical Legal Studies movement--led by the Brazilian philosopher, social theorist and politician Roberto Unger--sought to transform traditional views of law and legal doctrine, revealing the hidden interests and class dominations in prevailing legal frameworks. It remains highly influential, having spawned more recent movements, including feminist legal studies and Critical Race Theory. The Critical Legal Studies Movement develops its major ideas, showing how laws and legal discourse hide the social inequalities and political biases that so interest philosophy and revolutionary politics.
St. Augustine and Roman law are the two bridges from Athens and Jerusalem to the world of modern law. Augustine's almost eerily modern political realism was based upon his deep appreciation of human evil, arising from his insights into the human personality, the product of his reflections on his own life and the history of his times. These insights have traveled well through the ages and are mirrored in the pages of Aquinas, Luther and Calvin, Reinhold Niebuhr, and Hannah Arendt. The articles in this volume describe the life and world of Augustine and the ways in which he conceived both justice and law. They also discuss the little recognized Augustinian contributions to the field of modern hermeneutics - the discipline which informs the art of legal interpretation. Finally, they include Augustine's valuable discussion of church/state relations, the law of just wars, and proper role and limits of coercion, and the procreative dimensions of marriage. The volume also includes an extremely useful, definitive bibliography of Augustine and the law, and will leave readers with an increased appreciation of the contributions which Augustine has made to the history of jurisprudence. No one can read Augustine and these articles on his view of the law without taking away a new view of the law itself.
The right to security of person is widely recognized but little understood. Courts, legislatures, and scholars disagree about how the right to security of person should be defined. This book investigates the meaning of the right to security of person through an analysis of its constituent parts. Applying an original conceptual analysis of 'security', the right to security of person imposes both positive and negative duties. Also, identifying the interests to be protected by the right requires a theory of personhood or wellbeing such as Amartya Sen and Martha Nussbaum's 'capabilities approach'. It is accepted that any existing legal rights to security of person must be artificially delineated in order not to overstep the boundaries of other rights. In recognition of the naturally broad meaning of the right to security of person, it is proposed that human rights law as a whole should be seen as a mechanism to further security of person: rights as security.
Popular sovereignty - the doctrine that the public powers of state originate in a concessive grant of power from "the people" - is the cardinal doctrine of modern constitutional theory, placing full constitutional authority in the people at large, rather than in the hands of judges, kings, or a political elite. This book explores the intellectual origins of this influential doctrine and investigates its chief source in late medieval and early modern thought - the legal science of Roman law. Long regarded the principal source for modern legal reasoning, Roman law had a profound impact on the major architects of popular sovereignty such as Francois Hotman, Jean Bodin, and Hugo Grotius. Adopting the juridical language of obligations, property, and personality as well as the classical model of the Roman constitution, these jurists crafted a uniform theory that located the right of sovereignty in the people at large as the legal owners of state authority. In recovering the origins of popular sovereignty, the book demonstrates the importance of the Roman law as a chief source of modern constitutional thought.
This volume explores the relation between legal reasoning and logic from both a historical and a systematic perspective. The topics addressed include, among others, conditional legal acts, disjunctions in legal acts, presumptions and conjectures, conflicts of values, Jorgensens Dilemma, the Rhetors Dilemma, the theory of legal fictions and the categorization of contracts. The unifying problematic of these contributions concerns the conditional structures and, more particularly, the relationship between legal theory and legal reasoning in the context of conditions. The contributions in this work constitute the first results of the ANR-DFG joint research project "JuriLog" (Jurisprudence and Logic), which aims at fostering the cooperation between legal scholars and philosophers. On the one hand, lawyers and legal scholars have an interest in emphasizing the logical character of legal reasoning. In this respect, the present enquiry examines the question of how logic, especially newer forms of dialogical logic, can be made fruitful as a significant area of philosophy for jurisprudence and legal practice. On the other hand, logicians find in legal reasoning a striving towards clear definitions and inference-procedures that is relevant to their discipline. In order to fully understand such reciprocal relationships, it is necessary to bridge the gap between law, logic and philosophy in contemporary academic research. The essays collected in this volume all work towards this common goal. The book is divided in three sections. In the first part, the strong relation between Roman Law and logic is explored with respect to the analysis of disjunctive statements in legal acts. The second part focuses on Leibnizs legal theory. The third part, finally, is dedicated to current interactions between law and logic.
Philosophy of Law provides a rich overview of the diverse theoretical justifications for our legal rules, systems, and practices.* Utilizes the work of both classical and contemporary philosophers to illuminate the relationship between law and morality* Introduces students to the philosophical underpinnings of International Law and its increasing importance as we face globalization* Features concrete examples in the form of cases significant to the evolution of law* Contrasts Anglo-American law with foreign institutions and practices such as those in China, Japan, India, Ireland and Canada* Incorporates diverse perspectives on the philosophy of law ranging from canonical material to feminist theory, critical theory, postmodernism, and critical race theory
The essays selected for this volume show how relations between past, current and future generations have become a major subject of philosophical research since the 1970s. The relations between people alive today with people who may exist in the future and people now deceased, differ from relations between contemporaries and in ways that raise new conceptual, logical and substantive questions. Among the questions addressed in this volume are: what is the status of people now deceased and people who may exist in the future? Can the latter be harmed by the actions of people alive today? What duties of justice do we have towards people with whom we can neither interact nor co-operate, and can people who are indirect victims of past injustices legitimately claim compensation? Answers to these questions are relevant in a number of policy areas, most notably in issues regarding reparations for historical injustice and responding to climate change and its consequences.
This collection brings together a group of international legal historians to further scholarship in different areas of comparative and regional legal history. Authors are drawn from Europe, Asia, and the Americas to produce new insights into the relationship between law and society across time and space. The book is divided into three parts: legal history and legal culture across borders, constitutional experiences in global perspective, and the history of judicial experiences. The three themes, and the chapters corresponding to each, provide a balance between public law and private law topics, and reflect a variety of methodologies, both empirical and theoretical. The volume highlights the gains that may be made by comparing the development of law in different countries and different time periods. The book will be of interest to an international readership in Legal History, Comparative Law, Law and Society, and History.
Leading Works in Law and Religion brings together leading and emerging scholars in the field from the United Kingdom and Ireland. Each contributor has been invited to select and analyse a 'leading work', which has for them shed light on the way that Law and Religion are intertwined. The chapters are both autobiographical, reflecting upon the works that have proved significant to contributors, and also critical analyses of the current state of the field, exploring in particular the interdisciplinary potential of the study of Law and Religion. The book also includes a specially written introduction and conclusion, which critically comment upon the development of Law and Religion over the last 25 years and likely future developments in light of the reflections by contributors on their chosen leading works.
Cicero and Modern Law contains the best modern writings on Cicero's major law related works, such as the Republic, On Law, On Oratory, along with a comprehensive bibliography of writings on Cicero's legal works. These works are organized to reveal the influence of Cicero's writings upon the history of legal thought, including St. Thomas, the Renaissance, Montesquieu and the U.S. Founding Fathers. Finally, the articles include discussions of Cicero's influence upon central themes in modern lega thought, including legal skepticism, republicanism, mixed government, private property, natural law, conservatism and rhetoric. The editor offers an extensive introduction, placing these articles in the context of an overall view of Cicero's contribution to modern legal thinking.
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