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This book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, namely, appeal to conscience, flexibility, retroactivity and the use of morally-freighted jargon, are essential for the implementation of a legal ideal that has been neglected by the Common Law: aAccountability Correspondencea. According to this fundamental legal ideal, liability imposed by legal rules should correspond to the pattern of moral duty in the circumstances to which the rules apply. Equity promotes this ideal in the fields of property and obligations by disallowing parties to exploit the rule-like nature of Common Law norms in a way that breaches their moral duty to the other party. By reference to various equitable doctrines, it is argued that the faults identified by critics of Equity, especially from the perspective of the Rule of Law, are highly exaggerated, and that the criticism often reflects a political belief in the supremacy of individualism and free market over empathy and social justice. The theoretical part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands. For each doctrine, it is shown how their equitable characteristics are indispensable for achieving their social, ethical and economic purpose.
In this remarkable book, a national bestseller in hardcover, Sandra Day O'Connor explores the law, her life as a Supreme Court Justice, and how the Court has evolved and continues to function, grow, and change as an American institution. Tracing some of the origins of American law through history, people, ideas, and landmark cases, O'Connor sheds new light on the basics, exploring through personal observation the evolution of the Court and American democratic traditions. Straight-talking, clear-eyed, inspiring, The Majesty of the Law is more than a reflection on O'Connor's own experiences as the first female Justice of the Supreme Court; it also reveals some of the things she has learned and believes about American law and life--reflections gleaned over her years as one of the most powerful and inspiring women in American history.
Ranging over a host of issues, Property Rights: A Re-Examination pinpoints and addresses a number of theoretical problems at the heart of property theory. Part 1 reconsiders and rejects, once again, the bundle of rights picture of property and the related nominalist theories of property, showing that ownership reflects a tripartite structure of title: the right to immediate, exclusive, possession, the power to license what would otherwise be a trespass, and the power to transfer ownership. Part 2 explores in detail the Hohfeldian theory of jural relations, in particular liberties and powers and Hohfeld's concept of 'multital' jural relations, and shows that this theory fails to illuminate the nature of property rights, and indeed obscures much that it is vital to understand about them. Part 3 considers the form and justification of property rights, beginning with the relation an owner's liberty to use her property and her 'right to exclude', with particular reference to the tort of nuisance. Next up for consideration is the Kantian theory of property rights, the deficiencies of which lead us to understand that the only natural right to things is a form of use- or usufructory-right. Part 3 concludes by addressing the ever-vexed question of property rights in land.
In this volume, ownership is defined as the simple fact of being able to describe something as 'mine' or 'yours', and property is distinguished as the discursive field which allows the articulation of attendant rights, relationships, and obligations. Property is often articulated through legalism as a way of thinking that appeals to rules and to generalizing concepts as a way of understanding, responding to, and managing the world around one. An Aristotelian perspective suggests that ownership is the natural state of things and a prerequisite of a true sense of self. An alternative perspective from legal theory puts law at the heart of the origins of property. However, both these points of view are problematic in a wider context, the latter because it rests heavily on Roman law. Anthropological and historical studies enable us to interrogate these assumptions. The articles here, ranging from Roman provinces to modern-day piracy in Somalia, address questions such as: How are legal property regimes intertwined with economic, moral-ethical, and political prerogatives? How far do the assumptions of the western philosophical tradition explain property and ownership in other societies? Is the 'bundle of rights' a useful way to think about property? How does legalism negotiate property relationships and interests between communities and individuals? How does the legalism of property respond to the temporalities and materialities of the objects owned? How are property regimes managed by states, and what kinds of conflicts are thus generated? Property and ownership cannot be reduced to natural rights, nor do they straightforwardly reflect power relations: the rules through which property is articulated tend to be conceptually subtle. As the fourth volume in the Legalism series, this collection draws on common themes that run throughout the first three volumes: Legalism: Anthropology and History, Legalism: Community and Justice, and Legalism: Rules and Categories consolidating them in a framework that suggests a new approach to legal concepts.
This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations. Personal autonomy is often lauded as a key value in contemporary Western bioethics. Though the claim that there is an important relationship between autonomy and rationality is often treated as uncontroversial in this sphere, there is also considerable disagreement about how we should cash out the relationship. In particular, it is unclear whether a rationalist view of autonomy can be compatible with legal judgments that enshrine a patient's right to refuse medical treatment, regardless of whether the reasons underpinning the choice are known and rational, or indeed whether they even exist. Jonathan Pugh brings recent philosophical work on the nature of rationality to bear on the question of how we should understand personal autonomy in contemporary bioethics. In doing so, he develops a new framework for thinking about the concept of autonomy, one that is grounded in an understanding of the different roles that rational beliefs and rational desires have to play in it. Pugh's account allows for a deeper understanding of d the relationship between our freedom to act and our capacity to decide autonomously. His rationalist perspective is contrasted with other prominent accounts of autonomy in bioethics, and the revisionary implications it has for practical questions in biomedicine are also outlined.
A riveting new examination of the leading progressive justice of his era, published in the centennial year of his confirmation to the U.S. Supreme Court According to Jeffrey Rosen, Louis D. Brandeis was "the Jewish Jefferson," the greatest critic of what he called "the curse of bigness," in business and government, since the author of the Declaration of Independence. Published to commemorate the hundredth anniversary of his Supreme Court confirmation on June 1, 1916, Louis D. Brandeis: American Prophet argues that Brandeis was the most farseeing constitutional philosopher of the twentieth century. In addition to writing the most famous article on the right to privacy, he also wrote the most important Supreme Court opinions about free speech, freedom from government surveillance, and freedom of thought and opinion. And as the leader of the American Zionist movement, he convinced Woodrow Wilson and the British government to recognize a Jewish homeland in Palestine. Combining narrative biography with a passionate argument for why Brandeis matters today, Rosen explores what Brandeis, the Jeffersonian prophet, can teach us about historic and contemporary questions involving the Constitution, monopoly, corporate and federal power, technology, privacy, free speech, and Zionism.
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.
This book focuses on a specific component of the normative dimension of law, namely, law's normative claim. By 'normative claim, ' meaning the claim that, inherent in the law, is an ability to guide action by generating practical reasons having a special status. The thesis that law lays the normative claim has become a subject of controversy. It has its defenders, as well as many scholars of different orientations who have acknowledged the normative claim of law without making a point of defending it head-on. It has also come under attack from other contemporary legal theorists and a lively debate has sprung up. This debate makes up the main subject of this book, which is in essence an attempt to account for the normative claim and see how its recognition molds our understanding of the law itself. This involves: (a) specifying the exact content, boundaries, quality, and essential traits of the normative claim, (b) explaining how law can make a claim so specified, and (c) justifying why this should happen in the first place. The argument is set out in two stages, corresponding to the two parts in which the book is divided. In the first part, the author introduces and discusses the meaning, status, and fundamental traits of law's normative claim. In the second section, he explores some foundational questions and determines the grounds of law's normative claim by framing an account that elaborates on some contemporary discussions of Kant's conception of humanity as the source of the normativity of practical reason. This is the first book in Hart Publishing, Oxford's new series Law and Practical Reason, which addresses fundamental issues in legal philosophy. The series will be of interest to students and scholars in moral, political, and legal philosophy
The major intellectual interest throughout this book is to offer a study on China's legal legacy, through Liang Shu-ming's eyes. The book follows the formula of the parallel between Life and Mind ( ), Physis and Nomos, and compares Liang Shu-ming's narrative with his own practical orientation and with the theories of other interlocutors. The book puts Liang Shu-ming into the social context of modern Chinese history, in particular, the context of the unprecedented crisis of meaning in the legal realm and the collapse of a transcendental source for Chinese cultural identity in the light of modernity. The evaluation provided by this narrative could be helpful in clarifying the deep structures and significance of the present Chinese legal system through historically exploring Liang Shu-ming's misgivings. The book is intended for academics of legal, history and cultural studies. The book is unique in that it is the first book to explore New Confucian's considerations on reconstruction of Chinese legal system in the modern era. It presents a comprehensive systematical comparison of Liang Shu-ming's narrative about constitutional government in China against other schools of thought.
Court procedures matter. But why do they matter, and how? There is hardly another context in which decision making is so densely embedded in a host of formal and informal institutions. Courts do not themselves have the right of initiative. They must wait until a plaintiff or the attorney general brings a case forward. These same actors also define the issue. The court is not allowed to go beyond the claim, unless both parties voluntarily agree on a broader definition. Most importantly, courts are not free to determine the output. It is their task to apply the law in force to the facts of the case, as presented by the parties. In order to become decision relevant, facts must go through strictly defined procedural routes. If a fact is contested, it may only be taken into account if formally proven. There is an exhaustive list of evidence admissible in court. Informal rules, for instance, determine the structure and the wording of the pleadings, and of the representation of the final decision to the parties and to the legal community. This makes judicial procedure a particularly rewarding topic for the interaction between lawyers and psychologists. The Impact of Court Procedure on the Psychology of Judicial Decision Making, assembled through the lively interaction of a group of academics from the US and Germany, examines this fascinating topic.
Contemporary philosophical pluralism recognizes the inevitability and legitimacy of multiple ethical perspectives and values, making it difficult to isolate the higher-order principles on which to base a theory of justice. Rising up to meet this challenge, Rainer Forst, a leading member of the Frankfurt School's newest generation of philosophers, conceives of an "autonomous" construction of justice founded on what he calls the basic moral right to justification.
Forst begins by identifying this right from the perspective of moral philosophy. Then, through an innovative, detailed critical analysis, he ties together the central components of social and political justice--freedom, democracy, equality, and toleration--and joins them to the right to justification. The resulting theory treats "justificatory power" as the central question of justice, and by adopting this approach, Forst argues, we can discursively work out, or "construct," principles of justice, especially with respect to transnational justice and human rights issues.
As he builds his theory, Forst engages with the work of Anglo-American philosophers such as John Rawls, Ronald Dworkin, and Amartya Sen, and critical theorists such as J?rgen Habermas, Nancy Fraser, and Axel Honneth. Straddling multiple subjects, from politics and law to social protest and philosophical conceptions of practical reason, Forst brilliantly gathers contesting claims around a single, elastic theory of justice.
Ernst-Wolfgang Boeckenfoerde (b. 1930) is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court (December 1983 - May 1996), Boeckenfoerde has been a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Boeckenfoerde has influenced the way in which academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Boeckenfoerde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on (I) the political theory of the state; (II) constitutional theory; (III) constitutional norms and fundamental rights; and (IV) the relation between state, citizenship, and political autonomy. Each of these feature introductions to the articles as well as a running editorial commentary to the work. A second volume will follow this collection, focusing on the relation between religion, law, and democracy.
This collection of essays is the first edited volume in the English language which is entirely dedicated to the work of Eugen Ehrlich. Eugen Ehrlich (1862-1922) was an eminent Austrian legal theorist and professor of Roman law. He is considered by many as one of the 'founding fathers' of modern sociology of law. Although the importance of his work (including his concept of 'living law') is widely recognised, Ehrlich has not yet received the serious international attention he deserves. Therefore, this collection of essays is aimed at 'reconsidering' Eugen Ehrlich by bringing together an interdisciplinary group of leading international experts to discuss both the historical and theoretical context of his work and its relevance for contemporary law and society scholarship. This book has been divided into four parts. Part I of this volume paints a lively picture of the Bukowina, in southeastern Europe, where Ehrlich was born in 1862. Moreover it considers the political and academic atmosphere at the end of the nineteenth century. Part II discusses the main concepts and ideas of Ehrlich's sociology of law and considers the reception of Ehrlich's work in the German speaking world, in the United States and in Japan. Part III of this volume is concerned with the work of Ehrlich in relation to that of some his contemporaries, including Roscoe Pound, Hans Kelsen and Cornelis van Vollenhoven. Part IV focuses on the relevance of Ehrlich's work for current socio-legal studies. This volume provides both an introduction to the important and innovative scholarship of Eugen Ehrlich as well as a starting point for further reading and discussion.
Since the earliest days of philosophy, thinkers have debated the meaning of the term happiness and the nature of the good life. But it is only in recent years that the study of happiness - or 'hedonics' - has developed into a formal field of inquiry, cutting across a broad range of disciplines and offering insights into a variety of crucial questions of law and public policy. "Law and Happiness" brings together the best and most influential thinkers in the field to explore the question of what happiness is - and what factors can be demonstrated to increase or decrease it. Martha C. Nussbaum offers an account of the way that hedonics can productively be applied to psychology; Cass R. Sunstein considers the unexpected relationship between happiness and health problems; Matthew Adler and Eric A. Posner view hedonics through the lens of cost-benefit analysis; David A. Weisbach considers the relationship between happiness and taxation; Mark A. Cohen examines the role that crime - and fear of crime - can play in people's assessment of their happiness; and, other distinguished contributors take similarly innovative approaches to the topic of happiness. The result is a kaleidoscopic overview of this increasingly prominent field, offering surprising new perspectives and incisive analyses that will have profound implications for the law and our lives.
This volume explores the continuous line from informal and unrecorded practices all the way up to illegal and criminal practices, performed and reproduced by both individuals and organisations. The authors classify them as alternative, subversive forms of governance performed by marginal (and often invisible) peripheral actors. The volume studies how the informal and the extra-legal unfold transnationally and, in particular, how and why they have been/are being progressively criminalized and integrated into the construction of global and local dangerhoods; how the above-mentioned phenomena are embedded into a post-liberal security order; and whether they shape new states of exception and generate moral panic whose ultimate function is regulatory, disciplinary and one of crafting practices of political ordering.
This timely anthology brings into sharp relief the extent of violence against women. Its range is global and far reaching in terms of the number of victims. There are deeply entrenched values that need to be rooted out and laid bare. This text offers a philosophical analysis of the problem, with important insights from the various contributors. Topics range from sexual assault to media violence, prostitution and pornography, domestic violence, and sexual harassment. Each of the four parts include essays which tackle these issues and provide us with tools for bringing about change. The philosophical approaches to the topic give readers insight into the harms of interpersonal violence and its impact on the lives of its victims. Analyzing Violence Against Women calls us to examine public policies and work for systemic change. In the process, we are reminded that the concerns of the discipline of Philosophy encompasses issues with a wider scope. Students will especially benefit from seeing how the various authors grapple with this pressing issue and clarify why we need to bring about change.
Legal argumentation consists in the interpretation of texts. Therefore, it has a natural connection to the philosophy of language. Central issues of this connection, however, lack a clear answer. For instance, how much freedom do judges have in applying the law? How are the literal and the purposive approaches related to one another? How can we distinguish between applying the law and making the law? This book provides answers by means of a complex and detailed theory of literal meaning. A new legal method is introduced, namely the further development of the law. It is so far unknown in Anglo-American jurisprudence, but it is shown that this new method helps in solving some of the most crucial puzzles in jurisprudence. At its centre the book addresses legal indeterminism and refutes linguistic-philosophical reasons for indeterminacy. It spells out the normative character of interpretation as emphasized by Raz and, with the help of Robert Brandom's normative pragmatics, it is shown that the relativism of interpretation from a normative perspective does not at all justify scepticism. On the contrary, it supports the claim that legal argumentation can be objective, and maintains that statements on the meaning of a statute can be right or wrong, and take on inter-subjective validity accordingly. This book breaks new ground in transferring Brandom's philosophy to legal theoretical problems and presents an original and exciting analysis of the semantic argument in legal argumentation. It was the recipient of the European Award for Legal Theory in 2002. 'This book represents, on the one hand, a reception of Robert Brandom's important theory including applications of this theory in the field of legal philosophy and, on the other, an exploration of the limits of an appeal in legal interpretation to the text. The enquiry thereby impinges upon the central juridico-philosophical themes of meaning, objectivity, and normativity. The author's work counts as a significant contribution to analytical jurisprudence and is deserving of a wide readership.' Robert Alexy, Professor for Public Law and Legal Philosophy, Kiel. 'Klatt focuses on a very profound theory of concept formation and uses this theory in a creative way to solve classical problems of legal argumentation.' Aleksander Peczenik
"Quod non est in actis, non est in mundo," (What is not on file is not in the world.) Once files are reduced to the status of stylized icons on computer screens, the reign of paper files appears to be over. With the epoch of files coming to an end, we are free to examine its fundamental influence on Western institutions. From a media-theoretical point of view, subject, state, and law reveal themselves to be effects of specific record-keeping and filing practices. Files are not simply administrative tools; they mediate and process legal systems. The genealogy of the law described in Vismann's "Files" ranges from the work of the Roman magistrates to the concern over one's own file, as expressed in the context of the files kept by the East German State Security. The book concludes with a look at the computer architecture in which all the stacks, files, and registers that had already created order in medieval and early modern administrations make their reappearance.
Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state. In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard. A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.
This book argues that human rights cannot go global without going local. This important lesson from the winding debates on universalism and particularism raises intricate questions: what are human rights after all, given the dissent surrounding their foundations, content, and scope? What are legitimate deviances from classical human rights (law) and where should we draw "red lines"? Making a case for balancing conceptual openness and distinctness, this book addresses the key human rights issues of our time and opens up novel spaces for deliberation. It engages philosophical reasoning with law, politics, and religion and demonstrates that a meaningful relativist account of human rights is not only possible, but a sorely needed antidote to dogmatism and polarization.
This text applies the tools of game theory and information economics to advance the understanding of how laws work. Organized around the major solution concepts of game theory, the authors shows how such well-known games as the prisoner's dilemma, the battle of the sexes, beer-quiche and the Rubinstein bargaining game can illuminate many different kinds of legal problems. The organization of Game Theory and the Law serves to highlight the basic mechanisms at work and to lay out a natural progression in the sophistication of the game concepts and legal problems considered.
While masculinities theory has had much to say on relationships of subordination, few feminist legal scholars have examined the implications of masculinities theory for feminist legal theory. This volume investigates the ways in which emerging masculinities theory in law could inform feminist legal theory in particular and law in general. As many of the chapters in this collection illustrate, law is constantly in a dynamic interaction with masculinities: it has both influenced existing masculinities and has been influenced by those masculinities. The contributions focus feminist and critical theoretical attention on masculinities and consider the implications of masculinities theory for law and legal theory. The book sets out the theoretical trajectory of masculinities studies as a field and its application in law and uses insights from a masculinities approach to study socio-political construction of gender identities in specific settings. It also explores how understanding historical construction of gender identities can inform more effective public policy and activism. Written by leading experts in the area, the book poses important questions about the development of the relationship between feminisms and masculinities theory and will be essential reading for those working in law and gender and related areas.
Mark Platts is responsible for the first systematic presentation of truth-conditional semantics and for turning a generation of philosophers on to the Davidsonian program. He is also a pioneer in discussions of moral realism, and has made important contributions to bioethics, the philosophy of human rights and moral responsibility. This book is a tribute to Platts's pioneering work in these areas, featuring contributions from number of leading scholars of his work from the US, UK and Mexico. It features replies to the individual essays from Platts, as well as a concluding chapter reflecting on his philosophical career from Oxford to Mexico City. Mind, Language and Morality will be of interest to philosophers across a wide range of areas, including ethics, moral psychology, philosophy of law, and philosophy of language.
The third edition of Economic Foundations of Law introduces readers to the economic analysis of the major areas of the law: property law, torts, contracts, criminal law, civil procedure, corporation law and financial markets, taxation, and labor law. No prior knowledge of law is required, but a prior course in the principles of microeconomics would be quite helpful. The text opens with a review of the basic principles of price theory and an overview of the legal system, to ensure readers are equipped with the tools necessary for economic analysis of the law. The third edition provides expanded or new coverage of key topics including intellectual property law, how the creation of new forms of property rights affects the conservation of species such as elephants and fish, controversies involving liability for medical malpractice and class actions, the transformation of personal injury litigation by the intervention of insurance companies as plaintiffs, how to predict the outcome of litigation with game theory, an economic analysis of the ownership and use of guns, bankruptcy law, and the economics of bank regulation. Comprehensive and well-written, this text is a compelling introduction to law and economics that is accessible to both economics and law students.
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