In this age of collections that is ours, many volumes of collections are published. They contain contributions of several well-known authors, and their aim is to present a selective overview of a relevant field of study. This book has the same purpose. Its aim is to introduce students, scholars and all those interested in current problems of legal theory and legal philosophy to the work of the leading scholars in this field. The large number of publications, both books and articles, that have been produced over recent decades makes it quite difficult, however, for those who are making their first steps in this domain to find firm guidelines. The book is new in its genre because of its method. The choice was made not to reprint an example of contributors' earlier basic articles or a part of one of their books. This would only give a partial view of the rich texture of their work. Rather, the authors were asked to make an original synthesis of their own contributions to the field of legal theory and legal philosophy. Brought together in this volume, they constitute a truly author-ised view of their work. This book is also new in that each essay is complemented with bibliographical information in order to encourage further research on the author's self-selected work. This will help the reader rapidly to become familiar with the whole of the published work of the contributors.

'A leading figure in critical legal studies and renowned scholar of comparative constitutionalism, Frankenberg urges us forward, offering a new taxonomy for critical work. He illustrates its potential in terrific chapters on recent transnational legal movements: to regulate the veil, provide access to justice and reinvigorate human rights as a language of justification. A methodological tour de force.' - David Kennedy, Harvard University 'One of the most courageous and intellectually earnest legal scholars of our time, Gunter Frankenberg, has devoted his efforts to reconstructing comparative law's internal strength and potential for critical analysis. This book is a masterpiece that should be read by every serious thinker concerned with the need for legal reforms and the politics of globalization.' - Pier Giuseppe Monateri, University of Turin, Italy Presenting a critique of conventional methods in comparative law, this book argues that, for comparative law to qualify as a discipline, comparatists must reflect on how and why they make comparisons. Gunter Frankenberg discusses not only methods and theories but also the ethical implications and the politics of comparative law in order to bring out the different dimensions of the discipline. Comparative Law as Critique offers various approaches that turn on the academic discourse of comparative law, including analysis of a widespread spirit of innocence in terms of method, and critique of human rights narratives. It also analyses how courts negotiate differences between cases regarding Muslim veiling. Gunter Frankenberg presents varied critical projects that discuss methods and theories, ethics and the politics of comparative law to bring out the different dimensions of the discipline. The incisive critiques and comparisons in this book will make essential reading for comparatists working in legal education and research as well as students of comparative law and scholars in comparative anthropology and social sciences.

Degradation, dehumanization, instrumentalization, humiliation, and nonrecognition - these concepts point to ways in which we understand human beings to be violated in their dignity. Violations of human dignity are brought about by concrete practices and conditions; some commonly acknowledged, such as torture and rape, and others more contested, such as poverty and exclusion. This volume collates reflections on such concepts and a range of practices, deepening our understanding of human dignity and its violation, bringing to the surface interrelationships and commonalities, and pointing to the values that are thereby shown to be in danger. In presenting a streamlined discussion from a negative perspective, complemented by conclusions for a positive account of human dignity, the book is at once a contribution to the body of literature on what dignity is and how it should be protected as well as constituting an alternative, fresh and focused perspective relevant to this significant recurring debate. As the concept of human dignity itself crosses disciplinary boundaries, this is mirrored in the unique range of perspectives brought by the book's European and American contributors - in philosophy and ethics, law, human rights, literature, cultural studies and interdisciplinary research. This volume will be of interest to social and moral philosophers, legal and human rights theorists, practitioners and students.

Human interaction and communication are not only regulated by law,but such communication plays an increasing role in the making and legitimation of law, involving various kinds of participants in the communication process. The precise nature of these communications depends on the legal actors involved -- for instance legislators, judges, legal scholars, and the media -- and on the situations where they arise - for instance at the national and supra-national level and within or between State law and non-State law. The author argues that our conception of legal system, of democracy, of the legitimation of law and of the respective role of judges, legislators and legal scholars should be based on a pluralist and communicative approach, rather than on a monolithic and hierarchical one. This book analyses the main problems of jurisprudence from such a communicative perspective

Law and Justice in China's New Marketplace provides the first comprehensive multidisciplinary analysis of the jurisprudence and related law underlying the contemporary Chinese transition to the 'socialist market economy'. New 'pluralized jurisprudence' has moved beyond Marxist class analysis to consider a new balance of values relating to economic efficiency and social justice in the marketplace, and yet the interior debates and perspectives concerning these values are virtually unknown in the Western scholarly literature. By analysing the changing Chinese approach in law to the adjustment of social interests in the context of profound economic change , Law and Justice in China's New Marketplace provides a unique reference tool. It outlines the new vocabulary of market jurisprudence and law and examines new legal thinking on rights protection with reference to widely ranging and often hot internal debate over human rights, property law and procedural or judicial justice.

How can we characterise law and legal theory in the twenty-first century? Law After Modernity argues that we live in an age 'after Modernity' and that legal theory must take account of this fact. The book presents a dynamic analysis of law, which focusses on the richness and pluralism of law, on its historical embeddedness, its cultural contingencies, as well as acknowledging contemporary law's global and transnational dimensions. However, Law After Modernity also warns that the complexity, fragmentation, pluralism and globalisation of contemporary law may all too easily perpetuate injustice. In this respect, the book departs from many postmodern and pluralist accounts of law. Indeed, it asserts that the quest for justice becomes a crucial issue for law in the era of legal pluralism, and it investigates how it may be achieved. The approach is fresh, contextual and interdisciplinary, and, unusually for a legal theory work, is illustrated throughout with works of art and visual representations, which serve to re-enforce the messages of the book.

John Gardner's writings on the theory of criminal law have had a significant impact on the way that this subject is understood by academic lawyers and philosophers. This book collects together a thematic selection of his most widely read and widely cited pieces.
Theoretical writings on the criminal law have often been dominated by a preoccupation with the justification of criminal punishment. This work is different. Although it discusses the legitimacy of criminal punishment it proceeds on the footing that the criminal law does many important things apart from punishing people. In particular, Gardner argues that the criminal law provides an important forum for people to explain themselves. Such a forum would be important, argues Gardner, even if criminal punishment were to be abolished.
John Gardner tackles persistent and troublesome questions about the philosophical foundations of criminal law. Which wrongs are suitable to be crimes and why? What are the conditions of criminal responsibility, and how do they relate to the conditions of moral responsibility? What does it take to be complicit in another's wrongdoing? Should crimes ever be excused, and if so on what basis? How, if at all, should the criminal law adapt to conditions of social and cultural diversity?
The issues raised in these essays have a significance extending beyond the law. What does it mean to be a responsible agent, and why does it matter? Is my moral character only or mostly my own business? Is there a difference between being reasonable and being rational? These and many other moral problems lurk in the background of the criminal law, and the pieces in this book bring them into the foreground.

Building on his contributions to institutional legal theory in Institutional Legal Facts of 1993 (Law and Philosophy Library, volume 18), the author presents a comprehensive theory of legal institutions. To that end, the initial theoretical approach, which mainly concentrated on problems connected with legal powers and legal acts (acts-in-law), is widened to allow for the development of a theory of legal judgements capable of accounting not only for enacted but also unwritten law (legal principles and customary law). With the use of the concept of institutional legal facts, the structure of legal institutions is analyzed in detail. In addition to that, a classification of legal institutions is provided. Extensive attention is given to logical, as well as doctrinal problems connected with a conception of legal validity as the mode of existence of legal conditions rather than as a value of legal norms similar to the truth of propositions. The study results in an elaborate conceptual framework for institutional analysis of positive law. In a final chapter the analytical potential of the framework is put to the test by applying it to the branch of public international law known as the law of treaties'. Readership: Specialists in legal theory and lawyers interested in theoretical issues, particularly in linguistic approaches and questions related to the institutional nature of law.

Underlying the protection of human rights in Europe is a complex network of overlapping legal systems - domestic, EU, and ECHR. This book focuses on the potential for conflict to emerge between the systems where rights overlap and interpretations in different courts begin to diverge.
From the perspective of EU law, where the interpretation of rights differs national courts are asked to renounce the constitutional scope of protection, and the interpretations of the European Court of Human Rights, in favor of the scope defined by the European Court of Justice. From the perspective of the ECHR, the European Court of Human Rights is the ultimate authority on rights protection in Europe. This work presents a theory of supranational judicial authority to confront this problem, grounded in an ideal of judicial dialogue. It represents the first attempt to provide a thorough theoretical account of the value of judicial dialogue, and its potential for legitimating judicial decision-making at an international level.
Combining theoretical rigor with attention to the practicalities of European human rights law, the book will be accessible to a broad readership of legal theorists, EU lawyers and judges involved in building inter-judicial dialogue.

Law and the Unconscious is the first work of the French legal philosopher Pierre Legendre to appear in English. Trained as a lawyer, a historian and a psychoanalyst, the work of Pierre Legendre has consistently confronted law with the teaching and methods of psychoanalysis. The present collection of essays addresses a fascinating and diverse set of themes including the doctrinal regulation of tears, dance and law, the desire for the absolute, the war of texts, and the power of images.

This book elaborates and defends the idea of law without the state. Animated by a vision of peaceful, voluntary cooperation as a social ideal and building on a careful account of non-aggression, it features a clear explanation of why the state is illegitimate, dangerous, and unnecessary. It proposes an understanding of how law enforcement in a stateless society could be legitimate and what the optimal substance of law without the state might be, suggests ways in which a stateless legal order could foster the growth of a culture of freedom, and situates the project it elaborates in relation to leftist, anti-capitalist, and socialist traditions.

With the growing fragmentation of western societies and disillusionment with the political process, the question of legitimacy has become one of the key issues of contemporary politics and is examined in this volume in depth for the first time. Drawing on ethnographic material from the U.S., Europe, India, Japan, and Africa, anthropologists and legal scholars investigate the morally diversified definitions of legitimacy that co-exist in any one society. Aware of the tensions between state morality and community morality, they offer reflections on the relationship between agency -- individual and collective -- and the legal and political systems. In a situation in which politics has only too often degenerated into vacuous rhetoric, this volume demonstrates how critical the relationship between trust and legitimacy is for the authoritative exercise of power in democratic societies.

The book analyses the Indian Supreme Court's jurisprudence on homosexuality, its current approach and how its position has evolved in the past ten years. It critically analyses the Court's landmark judgments and its perception of equality, family, marriage and human rights from an international perspective. With the help of European Court of Human Rights' judgments and international conventions, it compares the legal and social discrimination meted out to the Indian LGBTI community with that in the international arena. From a social anthropological perspective, it demonstrates how gay masculinity, although marginalized, serves as a challenge to patriarchy and hegemonic masculinity. This unique book addresses the lack of in-depth literature on gay masculinity, elaborately narrating and analysing contemporary gay masculinity and emerging gay lifestyles in India and highlighting the latest research on the subject of homosexuality in general and in particular with respect to India. It also discusses several new issues concerning the gay men in India supported by the living law approach put forth by Eugen Ehrlich.

Determining the earliest point in time at which international law authorises a state to exercise its inherent right of self-defence is an issue which has been debated, but unsatisfactorily reasoned, by scholars and states since the 1960's. Yet it remains arguably the most pressing question of law that faces the international community. This book unravels the legal and factual complications which have obscured the answer to this question. In contrast to most other works, it takes an historic approach by tracing the evolution of the rights, rules and principles of international law which have governed the use of force by states since the 16th century. Its emphasis on self-defence provides the reader with a new and complete understanding of how and why the international legal framework limits defensive force to repelling an imminent threat or use of offensive force which is directed at the territory of a state.

Taking an historic approach enables this book to resurrect an understanding of the human defensive instinct which has guided the formation of the international law of self-defence. It also explains the true legal nature and scope of the inherent right of self-defence, of anticipatory self-defence and provides a definition of the legal commencement of an armed attack for the purpose of Article 51 of the "Charter."" "Finally, the reader will receive a unique source of research materials and analysis of state practice and of scholarly works concerning self-defence and the use of force since the 16th century, which is suitable for all readers of international law around the world.

At the same time that the pace of science and technology has greatly accelerated in recent decades, our legal and ethical oversight mechanisms have become bogged down and slower. This book addresses the growing gap between the pace of science and technology and the lagging responsiveness of legal and ethical oversight society relies on to govern emerging technologies. Whether it be biotechnology, genetic testing, nanotechnology, synthetic biology, computer privacy, autonomous robotics, or any of the other many emerging technologies, new approaches are needed to ensure appropriate and timely regulatory responses. This book documents the problem and offers a toolbox of potential regulatory and governance approaches that might be used to ensure more responsive oversight.

The main subject of this book is the rather fascinating link between an acceptable concept of political whole and its legal and moral implications. When we face this problem, we find that widespread categories like 'happiness' and "friendship" are at the same time necessary and dangerous, crucial and elusive. In order to make the case against the so-called Legal Enforcement of Morals, and to grasp the complex relationship between law and morality from a liberal point of view, it is not enough to reject a pattern of happiness, or of human flourishing, from which to draw normative instructions for men and women - it must be recognized that integration of individuals in the comprehensive groups, as well as in the political whole itself, is not the only valuable option. The fragile value of a relative lack of integration, a "right to unhappiness", turns out to be, eventually, what makes the weak, but decisive, moral primacy of liberal societies.

Under pressure from globalization, the classical distinction between domestic and international law has become increasingly blurred, spurring demand for new paradigms to construe the emerging postnational legal order. The typical response of constitutional and international lawyers as well as political theorists has been to extend domestic concepts - especially constitutionalism - beyond the state. Yet as this book argues, proposals for postnational constitutionalism not only fail to provide a plausible account of the changing shape of postnational law but also fall short as a normative vision. They either dilute constitutionalism's origins and appeal to 'fit' the postnational space; or they create tensions with the radical diversity of postnational society.
This book explores an alternative, pluralist vision of postnational law. Pluralism does not rely on an overarching legal framework but is characterized by the heterarchical interaction of various suborders of different levels - an interaction that is governed by a multiplicity of conflict rules whose mutual relationship remains legally open. A pluralist model can account for the fragmented structure of the European and global legal orders and it reflects the competing (and often equally legitimate) claims for control of postnational politics. However, it typically provokes concerns about stability, power and the rule of law.
This book analyzes the promise and problems of pluralism through a theoretical enquiry and empirical research on major global governance regimes, including the European human rights regime, the contestation around UN sanctions and human rights, and the structure of global risk regulation. The empirical research reveals how prevalent pluralist structures are in postnational law and what advantages they possess over constitutionalist models. Despite the problems it also reveals, the analysis suggests cautious optimism about the possibility of stable and fair cooperation in pluralist settings.

Kant's Master WorkPublished in 1797, The Philosophy of Law Rechtslehre] stands as one of the most significant late works by the great Prussian philosopher. Though he lived in an atmosphere of political and social repression, it is evident that Kant was sensitive to the revolutionary spirit that was spreading throughout Europe in the wake of Napoleon's armies. Claiming that man is born with reason and an innate desire for freedom, he argued that the union of these natural gifts could bring about a new sense of order and harmony in future generations. This edition also reprints Kant's later Supplementary Explanations (1797), which was added to the second edition (1798).Immanuel Kant 1724-1804] was the foremost thinker of the late Enlightenment and one of the greatest figures in the history of Western philosophy. Concerned principally with epistemology, ethics and aesthetics, his work synthesized trends initiated by Rationalism and Empiricism; it has been a significant influence in the subsequent development of philosophy, religion and law.

This collection offers a powerful and coherent study of the transformation of the multinational enterprise as both an object and subject of law within and beyond States. The study develops an analysis of the large firm as being a system of organization exercising vast powers through various instruments of private law, such as property rights, contracts and corporations. The volume focuses on the firm as the operational unit of governance within emerging systems of globalization, whilst exploring in-depth the forms within which the firm might be regulated as against the inhibiting parameters of national law. It connects, through the ordering concept of the firm in globalization, the distinct regimes of constitutionalization, national and international law. The study will be of interest to students and academics in globalization and the regulation of multinational corporations, as well as law, economics and politics on a global scale. It will also interest government leaders and NGOs working in the areas of MNE regulations.

DESCRIPTION: This volume of Studies in Law, Politics, and Society presents a diverse array of articles by an interdisciplinary and international group of scholars. Their work spans the social sciences, humanities, and law. It examines new perspectives on the relationship of law and values and race and the law. The articles published here exemplify the exciting and innovative work now being done in interdisciplinary legal scholarship. TABLE OF CONTENTS: List of contributors; Law and Values: Interpretive freedom and divine law: early rabbinic renderings of divine justice (C. Halberstam); Rawls' law of peoples: an expansion of the prioritization of political over religious values (E. Carpenter); Post modernity and the fading of individual responsibility (J. Krapp); Race in Law; Passing phantasms/sanctioning perfomativities: (re)reading white masculinity in Rhinelander v. Rhine lander (N. Hers); Tortious race, race torts: hate speech, intentional infliction, and the problem of harm (P.L. Rivers); Before or against the law? Citizens' legal beliefs and experiences as death penalty jurors (B. Steiner).

Is legal reasoning rationally persuasive, working within a discernible structure and using recognisable kinds of arguments? Does it belong to rhetoric in this sense, or to the domain of the merely 'rhetorical' in an adversative sense? Is there any reasonable certainty about legal outcomes in dispute-situations? If not, what becomes of the Rule of Law? Neil MacCormick's book tackles these questions in establishing an overall theory of legal reasoning which shows the essential part 'legal syllogism' plays in reasoning aimed at the application of law, while acknowledging that simple deductive reasoning, though always necessary, is very rarely sufficient to justify a decision. There are always problems of relevancy, classification or interpretation in relation to both facts and law. In justifying conclusions about such problems, reasoning has to be universalistic and yet fully sensitive to the particulars of specific cases. How is this possible? Is legal justification at this level consequentialist in character or principled and right-based? Both normative coherence and narrative coherence have a part to play in justification, and in accounting for the validity of arguments by analogy. Looking at such long-discussed subjects as precedent and analogy and the interpretative character of the reasoning involved, Neil MacCormick expands upon his celebrated Legal Reasoning and Legal Theory (OUP 1978 and 1994) and restates his 'institutional theory of law'.

We are said to face a crisis of over-criminalization: our criminal law has become chaotic, unprincipled, and over-expansive. This book proposes a normative theory of criminal law, and of criminalization, that shows how criminal law could be ordered, principled, and restrained. The theory is based on an account of criminal law as a distinctive legal practice that functions to declare and define a set of public wrongs, and to call to formal public account those who commit such wrongs; an account of the role that such practice can play in a democratic republic of free and equal citizens; and an account of the central features of such a political community, and of the way in which it constitutes its public realm-its civil order. Criminal law plays an important, but limited, role in such a political community in protecting, but also partly constituting, its civil order. On the basis of this account, we can see how such a political community will decide what kinds of conduct should be criminalized - not by applying one or more of the substantive master principles that theorists have offered, but by considering which kinds of conduct fall within its public realm (as distinct from the private realms that are not the polity's business), and which kinds of wrong within that realm require this distinctive kind of response (rather than one of the other kinds of available response). The outcome of such a deliberative process will probably be a more limited, and a more rational and principled, criminal law.

From early in his career Jacques Derrida was intrigued by law. Over time, this fascination with law grew more manifest and he published a number of highly influential analyses of ethics, justice, violence and law. This book brings together leading scholars in a variety of disciplines to assess Derrida's importance for and impact upon legal studies.

Republican Legal Theory discusses the history, constitution and purposes of law in a free state. This is the most comprehensive study since James Madison, Alexander Hamilton and The Federalist of republican legal ideas. Sellers explains the importance of popular sovereignty, the rule of law, the separation of powers, and other essential republican checks and balances in protecting liberty and against tyranny and corruption.