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The feudal system has come to be seen as one of the most characteristic features of the Western Middle Ages, yet the study of feudal law has not always received the same attention as that given to its institutions. This law, it is true, was a subject of secondary importance in the medieval universities, but there does remain a corpus of writing sufficiently large to permit the investigation of how it related to medieval practice. In these articles, now provided with extensive additional notes, Gerard Giordanengo has undertaken such an investigation, with particular reference to Southern France in the 12th-14th centuries. He shows how, in Provence, legal doctrine did exert a clear influence on feudal practice, and that it was the jurists attached to princely or ecclesiastic entourages who were the key to its dissemination. In the Dauphine, on the other hand, theory had a more limited impact, and feudal ties became not a mark of subjection, but a means of recognising legal and social status. At the governmental level, finally, he argues that it was not any feudal theory, nor even any feudal structures, but rather the absolutist doctrines of Roman law and the Old Testament that shaped the political ideology - and practice, if possible - of the medieval king. Le systeme feodal est considere comme etant l'une des caracteristiques fondamentales du Moyen Age occidental; cependant, l'etude du droit feodal savant n'a pas toujours fait l'objet de la mAme attention que celle portee A ses institutions et coutumes. Ce droit, il est vrai, etait un sujet d'importance secondaire au sein des universites medievales, mais il reste neanmoins, un ensemble d'ecrits suffisamment important pour qu'il soit possible d'examiner son influence sur la pratique medievale. Au cours de ces articles, des A present pourvus de notes supplementaires, Gerard Giordanengo a entrepris une telle analyse, se referant plus particulierement au Sud de l
The key to Gorbachev's reforms is the creation of a state in which the rule of law is sovereign. In this book Soviet and British and American jurists discuss the nature and role of the law in society, and assess the possibilities and difficulties of establishing a legal system based on the values and principles of Western democracies in the USSR. Among the topics covered are the role of a constitution, the status of political parties, the importance of glasnost, the question of individual rights and the meaning of pluralism. The contributors are W.E. Butler, R.Z. Livshits, M.D.A. Freeman, S.V. Polenina, E.V. Kumanin, A.D.H. Oliver, V.L. Entin, N.P. Koldaeva, J. Henderson, V.P. Kazimirchuk, G. Drewry, V. Bogdanor and M.M. Slavin.
Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent group intention. This book argues that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. The book argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation. Developing a robust account of the nature and importance of legislative intention, the book represents a significant contribution to the literature on deliberative democracy that will be of interest to all those thinking about legal interpretation and constitutional theory.
This volume brings together an international team of scholars to debate Cicero's role in the narrative of Roman law in the late Republic - a role that has been minimised or overlooked in previous scholarship. This reflects current research that opens a larger and more complex debate about the nature of law and of the legal profession in the last century of the Roman Republic. Contributors: Benedikt Forschner * Catherine Steel * Christine Lehne-Gstreinthaler * Jan Willem Tellegen * Jennifer Hilder * Jill Harries * Matthijs Wibier * Michael C. Alexander * Olga Tellegen-Couperus * Philip Thomas * Saskia T. Roselaar * Yasmina Benferhat.
It is generally assumed that we are justified in punishing criminals because they have committed a morally wrongful act. Determining when criminal liability should be imposed calls for a moral assessment of the conduct in question, with criminal liability tracking as closely as possible the contours of morality. Versions of this view are frequently argued for in philosophical accounts of crime and punishment, and seem to be presumed by lawyers and policy makers working in the criminal justice system. Challenging such assumptions, this book considers the dominant justifications of punishment and subjects them to a piercing moral critique. It argues that none overcome the objection that people who are convicted of a serious crime and sent to prison have their basic human rights violated. The institution of criminal punishment is shown to be a regrettable necessity not deserving of the moral enthusiasm it enjoys among many politicians and the popular press. From a moral point of view, punishment is entitled at best to grudging toleration. In the course of developing the argument, the book introduces the principal issues of criminal law theory with the aim of presenting a morally enlightened perspective on crimes and why we punish them. Enforcement of the law by police, prosecutors, and courts is a matter of concern for political morality, and the principal practices of the criminal justice system are subjected to moral scrutiny. The book presents an original, engaging, and provocative approach to the philosophy of crime and punishment, challenging not only students, but a wide range of other readers to rethink the fascinating and troubling questions at the foundations of crime and punishment.
In the first book-length book on the subject in over a quarter century, George C. Thomas III advances an integrated theory of double jeopardy law, a theory anchored in historical, doctrinal, and philosophical method.
Despite popular belief, double jeopardy has never been a limitation on the legislature. It functions instead to keep prosecutors and judges from imposing more than one criminal judgment for the same offense. Determining when seemingly different offenses constitute the "same offense" is no easy task. Nor is it always easy to determine when a defendant has suffered more than one criminal judgment. Tracing American double jeopardy doctrine back to twelfth century English law, the book develops a jurisprudential account of double jeopardy that recognizes the central role of the legislature in creating criminal law blameworthiness.
The African Charter on Human and Peoples' Rights (ACHPR) is the principle regional human rights treaty for the African continent. Adopted in 1981, there is now a significant body of jurisprudence and interpretation by its African Commission on Human and Peoples' Rights and the recently established African Court. This volume provides a comprehensive article-by-article legal analysis of the provisions of the Charter as it draws upon the documents adopted by the African Commission, including resolutions, case law, and concluding observations. Where relevant, case law adopted by the African Court on Human and Peoples' Rights, and that of other sub-regional courts and tribunals and domestic courts in Africa, are also incorporated. The book examines not only the substantive rights in the African Charter but also the work of the African Commission on Human and Peoples' Rights and provides a full examination of its mandate. A critical analysis of each of the provisions of the ACHPR is led principally by the jurisprudence and documentation of the African Commission and African Court. The text also identifies the overall development of the ACHPR within the broader regional and international human rights legal arena.
According to many Islamic jurists, the world is divided between dar al-Islam (the abode of Islam) and dar al-harb (the abode of war). This dual division of the world has led to a great amount of juridical discussion concerning what makes a territory part of dar al-Islam, what the status of Muslims living outside of this is, and whether they are obliged to obey Islamic jurisprudence. Susanne Olsson examines the differing understandings of dar al-Islam and dar al-harb, as well as related concepts, such as jihad and takfir. She thereby is able to explore how these concepts have been utilised, transformed and negotiated throughout history. As the subject of Muslims living in Europe is such a topical and sometimes controversial one, this book will appeal to researchers of modern Islam as integral to the Western experience.
Nearly half of all privately owned firearms in the world are in American hands. The U.S. homicide rate is 6 times higher than the average of all developed countries, and more than three times higher than any individual country. Half of all homicides are committed with a firearm. Gun advocates claim that the high rate of private gun ownership does not contribute to this; some even argue that murder rates would be lower if only more people carried guns to defend themselves. Pro gun control advocates find the correlation between number of guns and gun violence an obvious one - and that it should be the starting point for discussion about gun control. Both sides think their cases are strong, and have created a political stalemate. Can the truth of these views be evaluated rationally and dispassionately? Hugh Lafollette argues the gun control debate is more complex than advocates on either side acknowledge. It requires resolving moral and legal questions about the nature of and limitations on rights, as well as the responsibility of government to protect citizens from risk. It requires assessing claims about the right to bear arms, as well as the right to be secure from harm caused by guns. Empirical findings must be considered-about the role of guns in causing harm, the degree to which private ownership of guns can protect innocent civilians from attacks by criminals, whether the government should be constrained by a well-armed citizenry, and the degree to which laws seriously limiting access to guns can be effectively enforced. Lafollette carefully sorts through all these conceptual, moral, and empirical claims. He concludes that all things considered, the U.S. does need more gun control than we have. He then proposes an indirect strategy for decreasing harm from firearms-requiring all gun owners to have liability insurance (something the NRA actually encourages) similar to that of car owners. Lafollette argues that this approach could reduce gun violence without the problem of government intrusion. Painstakingly fair and historically informed, the book is mainly designed for use in applied ethics and public policy courses, showcasing how one might approach a difficult topic with care and even-handedness in order to construct a rational argument. In Defense of Gun Control sorts through the conceptual, moral, and empirical claims to fairly assess arguments for and against serious gun control.
This book studies major works of literature from classical antiquity to the present that reflect crises in the evolution of Western law: the move from a prelegal to a legal society in "The Eumenides," the Christianization of Germanic law in "Njal's Saga," the disenchantment with medieval customary law in "Reynard the Fox," the reception of Roman law in a variety of Renaissance texts, the conflict between law and equity in "Antigone" and "The Merchant of Venice," the eighteenth-century codification controversy in the works of Kleist, the modern debate between "pure" and "free" law in Kafka's "The Trial" and other fin-de-siecle works, and the effects of totalitarianism, the theory of universal guilt, and anarchism in the twentieth century.
Using principles from the anthropological theory of legal evolution, the book locates the works in their legal contexts and traces through them the gradual dissociation over the centuries of law and morality. It thereby associates and illuminates these masterpieces from an original point of view and contributes a new dimension to the study of literature and law.
In contrast to prevailing adherents of Law-and-Literature, this book professes Literature-and-Law, in which the emphasis is historical rather than theoretical, substantive rather than rhetorical, and literary rather than legal. Instead of adducing the literary work to illustrate debates about modern law, this book consults the history of law as an essential aid to the understanding of the literary text and its conflicts."
The Continuity of Legal Systems in Theory and Practice examines a persistent and fascinating question about the continuity of legal systems: when is a legal system existing at one time the same legal system that exists at another time? The book's distinctive approach to this question is to combine abstract critical analysis of two of the most developed theories of legal systems, those of Hans Kelsen and Joseph Raz, with an evaluation of their capacity, in practice, to explain the facts, attitudes and normative standards for which they purport to account. That evaluation is undertaken by reference to Australian constitutional law and history, whose diverse and complex phenomena make it particularly apt for evaluating the theories' explanatory power. In testing whether the depiction of Australian law presented by each theory achieves an adequate 'fit' with historical facts, the book also contributes to the understanding of Australian law and legal systems between 1788 and 2001. By collating the relevant Australian materials systematically for the first time, it presents the case for reconceptualising the role of Imperial laws and institutions during the late nineteenth and early twentieth centuries, and clarifies the interrelationship between Colonial, State, Commonwealth and Imperial legal systems, both before and after Federation.
"Tough Cases stands out as a genuine revelation. . . . Our most distinguished judges should follow the lead of this groundbreaking volume." Justin Driver, The Washington Post A rare and illuminating view of how judges decide dramatic legal cases-Law and Order from behind the bench-including the Elian Gonzalez, Terri Schiavo, and Scooter Libby cases Prosecutors and defense attorneys have it easy-all they have to do is to present the evidence and make arguments. It's the judges who have the heavy lift: they are the ones who have to make the ultimate decisions, many of which have profound consequences on the lives of the people standing in front of them. In Tough Cases, judges from different kinds of courts in different parts of the country write about the case that proved most difficult for them to decide. Some of these cases received international attention: the Elian Gonzalez case in which Judge Jennifer Bailey had to decide whether to return a seven-year-old boy to his father in Cuba after his mother drowned trying to bring the child to the United States, or the Terri Schiavo case in which Judge George Greer had to decide whether to withdraw life support from a woman in a vegetative state over the wishes of her parents, or the Scooter Libby case about appropriate consequences for revealing the name of a CIA agent. Others are less well-known but equally fascinating: a judge on a Native American court trying to balance U.S. law with tribal law, a young Korean American former defense attorney struggling to adapt to her new responsibilities on the other side of the bench, and the difficult decisions faced by a judge tasked with assessing the mental health of a woman who has killed her own children. Relatively few judges have publicly shared the thought processes behind their decision making. Tough Cases makes for fascinating reading for everyone from armchair attorneys and fans of Law and Order to those actively involved in the legal profession who want insight into the people judging their work.
"Two Books of the Elements of Universal Jurisprudence" was Pufendorf's first work, published in 1660. Its appearance effectively inaugurated the modern natural-law movement in the German-speaking world. The work also established Pufendorf as a key figure and laid the foundations for his major works, which were to sweep across Europe and North America."Elements of Universal Jurisprudence" established Pufendorf's political theory, which, when fully developed, became the most significant alternative to rights-based theories. Pufendorf rejected the concept of natural rights as liberties and the suggestion that political government is justified by its protection of such rights, arguing instead for a principled limit to the state's role in human life. The Liberty Fund edition is based on the translation by William Abbott Oldfather prepared for the Classics of International Law series published by the Carnegie Endowment for International Peace.Samuel Pufendorf (1632-1694) was one of the most important figures in early-modern political thought. An exact contemporary of Locke and Spinoza, he transformed the natural law theories of Grotius and Hobbes, developed striking ideas of toleration and of the relationship between church and state, and wrote extensive political histories and analyses of the constitution of the German empire.Thomas Behme is a member of the Institute for Philosophy at the Free University of Berlin.William Abbott Oldfather (1880-1945) was Professor of Classics at the University of Illinois at Urbana-Champaign.Knud Haakonssen is Professor of Intellectual History at the University of Sussex, England.
The second edition of this book provides a concise and accessible guide to modern jurisprudence, offering an examination of the major theories as well as highlighting principal themes such as legality and justice. Together with new material, the second edition explores the historical developments and ideas that give modern thinking its distinctive shape. A key feature of the book is that readers are not simply presented with opposing theories, but are guided through the rival standpoints on the basis of a coherent line of reflection from which an overall sense of the subject can be gained. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis take the reader systematically through the terrain of modern legal philosophy, tracing the issues back to fundamental questions of philosophy, and indicating lines of criticism that result in a fresh and original perspective on the subject.
Rights and Civilizations, translated from the Italian original, traces a history of international law to illustrate the origins of the Western colonial project and its attempts to civilize the non-European world. The book, ranging from the sixteenth century to the twenty-first, explains how the West sought to justify its own colonial conquests through an ideology that revolved around the idea of its own assumed superiority, variously attributed to Christian peoples (in the early modern age), Western 'civil' peoples (in the nineteenth century), and 'developed' peoples (at the beginning of the twentieth century), and now to democratic Western peoples. In outlining this history and discourse, the book shows that, while the Western conception may style itself as universal, it is in fact relative. This comes out by bringing the Western civilization into comparison with others, mainly the Islamic one, suggesting the need for an 'intercivilizational' approach to international law.
How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have 'constitutions'? Should everyone want to live under a system of law? Is there a special kind of 'legal justice'? Does it consist simply in applying the law of the system? And how does it relate to the ideal of 'the rule of law'? These and other classic questions in the philosophy of law form the subject-matter of Law as a Leap of Faith. In this book John Gardner collects, revisits, and supplements fifteen years of celebrated writings on general questions about law and legal systems - writings in which he attempts, without loss of philosophical finesse or insight, to cut through some of the technicalities with which the subject has become encrusted in the late twentieth century. Taking his agenda broadly from H.L.A. Hart's The Concept of Law (1961), Gardner shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms - in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process Gardner engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin. Most importantly he presents the main elements of his own unique and refreshingly direct way of thinking about law, brought together in one place for the first time.
How can we distinguish between injustice and misfortune? What can we learn from the victims of calamity about the sense of injustice they harbor? In this book a distinguished political theorist ponders these and other questions and formulates a new political and moral theory of injustice that encompasses not only deliberate acts of cruelty or unfairness but also indifference to such acts. Judith N. Shklar draws on the writings of Plato, Augustine, and Montaigne, three skeptics who gave the theory of injustice its main structure and intellectual force, as well as on political theory, history, social psychology, and literature from sources as diverse as Rosseau, Dickens, Hardy, and E. L. Doctorow. Shklar argues that we cannot set rigid rules to distinguish instances of misfortune from injustice, as most theories of justice would have us do, for such definitions would not take into account historical variability and differences in perception and interest between the victims and spectators. From the victim's point of view-whether it be one who suffered in an earthquake or as a result of social discrimination-the full definition of injustice must include not only the immediate cause of disaster but also our refusal to prevent and then to mitigate the damage, or what Shklar calls passive injustice. With this broader definition comes a call for greater responsibility from both citizens and public servants. When we attempt to make political decisions about what to do in specific instances of injustice, says Shklar, we must give the victim's voice its full weight. This is in keeping with the best impulses of democracy and is our only alternative to a complacency that is bound to favor the unjust.
The papers selected for this volume offer a panorama of problems and methods at the intersection of legal theory and the humanities. All taken from the last three decades, the papers discuss issues such as the role of the emotions and the imagination in legal reasoning, and the protection of the diversity of voices and perspective in the name of community. Unduly neglected sources and resources for legal theory are also explored: images, still and moving; performance, aural and gestural; and space, old and new, from the Inns of Court to the World Wide Web. The articles balance renewed calls to humanise legal theory with those that analyse and explore the relevance of specific domains of the humanities - such as literature, architecture, music, painting, drawing and film - for law. The volume contains a substantive introduction and a detailed bibliography.
This book examines the international, regional and domestic human rights frameworks that establish victim rights as a central force in law and policy in the twenty-first century. Accessing substantial source material that sets out a normative framework of victim rights, this work argues that despite degrees of convergence, victim rights are interpreted on the domestic level, in accordance with the localised interests of victims and individual states. The transition of the victim from peripheral to central stakeholder of justice is demonstrated across various adversarial, inquisitorial and hybrid systems in an international context. Examining the standing of victims globally, this book provides a comparative analysis of the role of the victim in the International Criminal Court, the ad hoc tribunals leading to the development of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, together with the Extraordinary Chambers of the Courts of Cambodia, Special Panels of East Timor (Timor Leste), and the Internationalised Panels in Kosovo. The instruments of the European Parliament and Council of Europe, with the rulings of the European Court of Justice, and the European Court of Human Rights, interpreting the European Convention of Human Rights, are examined. These instruments are further contextualised on the local, domestic level of the inquisitorial systems of Germany and France, and mixed systems of Sweden, Austria and the Netherlands, together with common law systems including, England and Wales, Ireland, Scotland, USA, Australia, Canada, New Zealand, India, South Africa, and the hybrid systems of Japan and Brazil. This book organises the authoritative instruments while advancing debate over the positioning of the victim in law and policy, as influenced by global trends in criminal justice, and will be of great interest to scholars of international law, criminal law, victimology and socio-legal studies.
Consent is used in many different social and legal contexts with the pervasive understanding that it is, and has always been, about autonomy - but has it? Beginning with an overview of consent's role in law today, this book investigates the doctrine's inseparable association with personal autonomy and its effect in producing both idealised and demonised forms of personhood and agency. This prompts a search for alternative understandings of consent. Through an exploration of sexual offences in Antiquity, medical practice in the Middle Ages, and the regulation of bodily harm on the present-day sports field, this book demonstrates that, in contrast to its common sense story of autonomy, consent more often operates as an act of submission than as a form of personal freedom or agency. The book explores the implications of this counter-narrative for the law's contemporary uses of consent, arguing that the kind of freedom consent is meant to enact might be foreclosed by the very frame in which we think about autonomy itself. This book will be of interest to scholars of many aspects of law, history, and feminism as well as students of criminal law, bioethics, and political theory.
The Coercion Thesis has been a subject of longstanding debate, but legal positivist scholarship over the last several decades has concluded that coercion is not necessary for law. Coercion and the Nature of Law is concerned with reviving the Coercion Thesis, presenting a strong case for the inherently coercive nature of legal regulation, and arguing that anything properly characterized as a legal system must back legal norms prohibiting breaches of the peace with the threat of a coercive sanction. Himma presents the argument that people are self-interested beings who must compete in a world of scarcity for everything they need to survive and thrive. The need to compete for resources naturally leads to conflict that can breach the peace, and threatens the ability to live together in a community and reap the social benefits of cooperation. Law only functions as a system if it can maintain the peace enough for community to continue, and thus systems of law cannot succeed in doing anything that we want systems of law to do unless they back laws prohibiting violent assaults on persons or property with the threat of punishment; without sanctions, we would descend into something resembling a condition of war-of-all-against-all. We adopt coercive systems of regulation precisely to avoid having to live under such conditions. The book is divided into three parts: (1) a prima facie logical-empirical case for the Coercion Thesis, (2) a study of the "society of angels" and international law counterexamples, and why they do not refute the thesis, and (3) an analysis of how law guides behaviour and the implications of the Coercion Thesis on reasons for action. Going against the current conventional wisdom in legal philosophy, Himma makes a systematic defence of the Coercion Thesis arguing that coercion or enforcement mechanisms are not only a necessary feature of legal systems, but a conceptually necessary feature of legal systems.
The concept of learning to 'think like a lawyer' is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of 'thinking like a lawyer' or 'pure lawyering' aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering's potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors. This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on 'thinking like a lawyer' beyond the litigation arena.
Paradigms of International Human Rights Law explores the legal, ethical, and other policy consequences of three core structural features of international human rights law: the focus on individual rights instead of duties; the division of rights into substantive and nondiscrimination categories; and the use of positive and negative right paradigms. Part I explains the types of individual, corporate, and state duties available, and analyzes the advantages and disadvantages of incorporating each type of duty into the world public order, with special attention to supplementing individual rights with explicit individual and state duties. Part II evaluates how substantive rights and nondiscrimination rights are used to protect similar values through different channels; summarizes the nondiscrimination right in international practice; proposes refinements; and explains how the paradigms synergize. Part III discusses negative and positive paradigms by dispelling a common misconception about positive rights, and then justifies and defines the concept of negative rights, justifies positive rights, and concludes with a discussion of the ethical consequences of structuring the human rights system on a purely negative paradigm. For each set of alternatives, the author analyzes how human rights law incorporates the paradigms, the technical legal implications of the various alternatives, and the ethical and other policy consequences of using each alternative while dispelling common misconceptions about the paradigms and considering the arguments justifying or opposing one or the other.
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