This multi-disciplinary, multi-jurisdictional collection offers the first ever full-scale analysis of legal fictions. Its focus is on fictions in legal practice, examining and evaluating their roles in a variety of different areas of practice (e.g. in Tort Law, Criminal Law and Intellectual Property Law) and in different times and places (e.g. in Roman Law, Rabbinic Law and the Common Law). The collection approaches the topic in part through the discussion of certain key classical statements by theorists including Jeremy Bentham, Alf Ross, Hans Vaihinger, Hans Kelsen and Lon Fuller. The collection opens with the first-ever translation into English of Kelsen's review of Vaihinger's As If. The 17 chapters are divided into four parts: 1) a discussion of the principal theories of fictions, as above, with a focus on Kelsen, Bentham, Fuller and classical pragmatism; 2) a discussion of the relationship between fictions and language; 3) a theoretical and historical examination and evaluation of fictions in the common law; and 4) an account of fictions in different practice areas and in different legal cultures. The collection will be of interest to theorists and historians of legal reasoning, as well as scholars and practitioners of the law more generally, in both common and civil law traditions.

During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from both the Anglo-American and European traditions. Not only does it help make some of the best work available to an international audience, but it also encourages increased aware ness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowned scholars. Legal philosophy should not be considered a narrowly circumscribed field. Insights into law and legal institutions can come from diverse disciplines on a wide range of topics. Among the relevant disciplines or perspectives contributing to legal philosophy, besides law and philosophy, are anthropol ogy, economics, political science, and sociology. Among the topics included in legal philosophy are theories of law; the concepts of law and legal institu tions; legal reasoning and adjudication; epistemological issues of evidence and procedure; law and justice, economics, politics, or morality; legal ethics; and theories of legal fields such as criminal law, contracts, and property."

This book develops a responsible and practical method for evaluating the success, failure, or "crisis" of American civil-military relations among its political and uniformed elite. The author's premise is that currently there is no objectively fair way for the public at large or the strategic-level elites to assess whether the critical and often obscured relationships between Generals, Admirals, and Statesmen function as they ought to under the US constitutional system. By treating these relationships-in form and practice-as part of a wider principal (civilian)-agency (military) dynamic, the book tracks the "duties"-care, competence, diligence, confidentiality, scope of responsibility-and perceived shortcomings in the interactions between US civilian political authorities and their military advisors in both peacetime and in war.

Austin introduced theories of analytical jurisprudence and positive law in this landmark book, which also became the founding text of legal positivism. This reissue of the only edition published during his lifetime, long unavailable, will be of great interest to researchers, historians, libraries and scholars of jurisprudence. John Austin 1790-1859] is best known for developing the theory of legal positivism. After serving in the military he read law and was called to the bar in 1818. He abandoned his practice when he was appointed to the first chair of Jurisprudence at the University of London in 1826, a post he held until 1835. His work was greatly influenced by Jeremy Bentham, a close friend. Austin was the dominant English legal theorist for over a century.

"Law and Transcendence" examines and develops the philosophy of British Philosopher Gillian Rose. By putting Roses thought into critical dialogue with contemporary philosophers and religious thinkers, the author demonstrates the continuing importance of her work and the importance of critical engagement between philosophy and religious thought.""

This book asserts that the Pacific Islands continue to struggle with the colonial legacy of plural legal systems, comprising laws and legal institutions from both the common law and the customary legal system. It also investigates the extent to which customary principles and values are accommodated in legislation. Focusing on Samoa, the author argues that South Pacific countries continue to adopt a Western approach to law reform without considering legal pluralism, which often results in laws which are unsuitable and irrelevant to Samoa. In the context of this system of law making, effective law reform in Samoa can only be achieved where the law reform process recognises the legitimacy of the two primary legal systems. The book goes on to present a law reform process that is more relevant and suitable for law making in the Pacific Islands or any post-colonial societies.

This volume offers a collection of articles by leading legal and political theorists. Originally intended as a celebration of MacCormick's work on the occasion of the completion of the four-volume series on "Law, State and Practical Reason," it has turned into a homage and salute after MacCormick's passing. Cast in MacCormick's reflexive spirit, the book presents a critical reconstruction of the Scottish philosopher's work, with the aim of revealing the connections between law and democracy in his writings and furthering his insights in each specific field.

Neil MacCormick made outstanding contributions to the understanding of law and democracy under conditions of pluralism. His institutional theory of law has elucidated the close connection between the normative character of law as a means of social integration and legal social practices. This has produced a synthesis of the key insights of the legal and political theories of Kelsen, Hart, Alexy and Dworkin, and has broken new ground by undermining the 'monolithic' and 'nation-state' centered character of standard legal theories."

This book offers educational experiences, including reflections and the resulting essays, from the Roberta Kevelson Seminar on Law and Semiotics held during 2008 - 2011 at Penn State University's Dickinson School of Law. The texts address educational aspects of law that require attention and that also are issues in traditional jurisprudence and legal theory. The book introduces education in legal semiotics as it evolves in a legal curriculum. Specific semiotic concepts, such as "sign", "symbol" or "legal language," demonstrate how a lawyer's professionally important tasks of name-giving and meaning-giving are seldom completely understood by lawyers or laypeople. These concepts require analyses of considerable depth to understand the expressiveness of these legal names and meanings, and to understand how lawyers can "say the law," or urge such a saying correctly and effectively in the context of a natural language that is understandable to all of us. The book brings together the structure of the Seminar, its foundational philosophical problems, the specifics of legal history, and the semiotics of the legal system with specific themes such as gender, family law, and business law.

This timely interdisciplinary work on current developments in ICT and privacy/data protection, coincides as it does with the rethinking of the Data Protection Directive, the contentious debates on data sharing with the USA (SWIFT, PNR) and the judicial and political resistance against data retention. The authors of the contributions focus on particular and pertinent issues from the perspective of their different disciplines which range from the legal through sociology, surveillance studies and technology assessment, to computer sciences. Such issues include cutting-edge developments in the field of cloud computing, ambient intelligence and PETs; data retention, PNR-agreements, property in personal data and the right to personal identity; electronic road tolling, HIV-related information, criminal records and teenager's online conduct, to name but a few.

In Natural Law and Civil Sovereignty new research by leading international scholars is brought to bear on a single crucial issue: the role of early modern natural law doctrines in reconstructing the relations between moral right and civil authority in the face of profound religious and political conflict. In addition to providing fresh insights into the hard-fought struggle to legitimate a desacralised civil order, the book also shows the degree to which the legitimacy of the modern secular state remains dependent on this decisive set of developments.

Transparency is a fundamental principle of justice. A cornerstone of the rule of law, it allows for public engagement and for democratic control of the decisions and actions of both the judiciary and the justice authorities. This book looks at the question of transparency within the framework of transitional justice. Bringing together scholars from across the disciplinary spectrum, the collection analyses the issue from socio-legal, cultural studies and practitioner perspectives. Taking a three-part approach, it firstly discusses basic principles guiding justice globally before exploring courts and how they make justice visible. Finally, the collection reviews the interface between law, transitional justice institutions and the public sphere.

This book explores topical issues in military ethics by according peace a central role within an interdisciplinary framework. Whilst war and peace have traditionally been viewed through the lens of philosophical enquiry, political issues and theological ideas - as well as common sense - have also influenced people's understanding of armed conflicts with regards to both the moral issues they raise and the policies and actions they require. Comprised of fourteen essays on the role and application of peace, the book places emphasis on it's philosophical, moral, theological, technological, and practical implications. Starting with an overview of Kantian perspectives on peace, it moves to discussions of the Just War debates, religious conceptualizations of peace, and the role of peace in modern war technology and cyber-security. Finally concluding with discussions of the psychological and medical impacts of war and peace on both the individual and the larger society, this collection offers a contribution to the field and will be of interest to a wide audience. Chapters 4, 6 and 10 of this book are available open access under a CC BY 4.0 license at link.springer.com.

In this book the practical dimension of social justice is explained using the analysis and discussion of a variety of well-known topics. These include: the relation between theory and practice in normative political philosophy;the issue of justice under uncertainty; the question of whether we can and should unmask social injustices by means of conspiracy theories; the issues of privacy and the right to privacy; the issue of how certain psychological states may affect our moral obligations, in particular the obligation to treat others fairly; and finally the concepts of morality, fairness, and self-deception. The primary goal of the book is to provide readers with an updated discussion of some important and practical social justice issues. These issues are presentedfrom anew perspective, based on the authors research. It is hoped that bringing these topics together in a single book will promote the emergence of new insights and challenges for future research.

Juha Raikka is a professor at the Department of Philosophy at the University of Turku, Finland. His research focuses on ethics and political philosophy.

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This volume discusses EU criminal justice from three perspectives. The first concerns fundamental rights following the adoption of the directives that have progressively reinforced the cornerstone of procedural rights of suspects and defendants in national criminal proceedings in the EU member states so as to facilitate judicial cooperation. The second perspective relates to transnational criminal investigations and proceedings, which are seen as a cross section of the current state of judicial cooperation in the area of freedom, security and justice, with the related issues of efficiency, coordination, settlement of conflicts of jurisdiction, and guarantees. The third perspective concerns the development of a supranational justice system in the light of the recently established European Public Prosecutor's Office, whose European judicial nature still coexists with strong national components.

Discussing classical legal positivists this book comprises a study of their work which is situated in relation to the modern tradition in legal philosophy. In this way, it is demonstrated that the theorists adhered closely to the natural law standpoint in legal philosophy, while also defending the particular view of the proper functions of law and the state that distinguished the tradition of modern liberalism. The author has also written "The Redefinition of Conservatism".

One might legitimately ask what reasons other than vanity could prompt an author to issue a collection of his previously published essays. The best reason, I think, is the belief that the essays hang together in such a way that, as a book, they produce a whole which is in a sense greater than the sum of its parts. When this happens, as I hope it does in the present case, it is because the essays pursue related themes in such a way that, together, they at least form a start toward the development of a systematic theory on the common foundations supporting the particular claims in the particular articles. With respect to this collection, the essays can all be read as particular ways of pursuing the following general pattern of thought: that a commitment to justice and a respect for rights (and not social utility) must be the foundation of any morally acceptable legal order; that a social contractarian model is the best way to illuminate this foundation; that a retributive theory of punish ment is the only theory of punishment resting on such a foundation and thus is the only morally acceptable theory of punishment; that the twentieth century's faddish movement toward a "scientific" or therapeutic response to crime runs grave risks of undermining the foundations of justice and rights on which the legal order ought to rest; and, finally, that the legitimate worry about the tendency of the behavioral sciences to undermine the values of"

An Approach to Rights contains fifteen previously published but mostly inaccessible papers that together show the development of one of the more important contemporary theories of the nature, grounds and practical implications of rights. In a long retrospective essay, Carl Wellman explains what he was trying to accomplish in each paper, how far he believes that he succeeded and where he failed. Thus the author provides a critical perspective both on his own theory and on alternative theories from which he borrows, or that he rejects. These essays identify the problems any adequate theory of rights must solve, describe the more plausible solutions and weigh the merits of each. They will be of special interest to any reader concerned with legal theory, moral philosophy or any branch of applied ethics or social policy in which appeals to rights are frequently made but seldom rationally satisfactory.

In this book a theory of reasoning with evidence in the context of criminal cases is developed. The main subject of this study is not the law of evidence but rather the rational process of proof, which involves constructing, testing and justifying scenarios about what happened using evidence and commonsense knowledge. A central theme in the book is the analysis of ones reasoning, so that complex patterns are made more explicit and clear. This analysis uses stories about what happened and arguments to anchor these stories in evidence. Thus the argumentative and the narrative approaches from the research in legal philosophy and legal psychology are combined. Because the book describes its subjects in both an informal and a formal style, it is relevant for scholars in legal philosophy, AI, logic and argumentation theory. The book can also appeal to practitioners in the investigative and legal professions, who are interested in the ways in which they can and should reason with evidence.

Gans ranks at the head of that important group of Hegelian thinkers that bridged the generations of Hegel and Marx. ! Yet there is a large gap between Gans 's historical importance and the scholarship on him. Despite a renewal of interest in Gans's work on the Continent,2 Gans remains almost completely unknown to English-Ianguage scholars, and almost none ofhis work has been 3 previously translated. His Prefaces to his posthumous editions of Hegel's writings are inaccessib1e to English speakers, despite the fact that they shed important light on the authenticity of the so-called Additions to those texts. His Preface to Hegel's Philosophy ofLaw has never been translated before, while his Preface to the Philosophy of History has been omitted from reprintings 4 for generations. Moreover, the recent scholarship on the Continent has focused on Gans 's political and philosophical rather than his legal writings. There is little dis cussion in any language ofhis system oflaw, which is the focus ofthe present study. Some of the reasons for the neglect of Gans are obvious. Gans cannot be a hero for most readers today. He accepted apostasy as a means to profes sional advancement. And though more liberal than Hegel, Gans nonetheless accommodated himself to the results of the Restoration and evaded political persecution that might have kindled the sympathy of later generations.

This book brings recent insights about sovereignty and citizen participation in the Belgian Constitution to scholars in the fields of law, philosophy, history, and politics. Throughout the Western world, there are increasing calls for greater citizen participation. Referendums, citizen councils, and other forms of direct democracy are considered necessary antidotes to a growing hostility towards traditional party politics. This book focuses on the Belgian debate, where the introduction of participatory politics has stalled because of an ambiguity in the Constitution. Scholars and judges generally claim that the Belgian Constitution gives ultimate power to the nation, which can only speak through representation in parliament. In light of this, direct democracy would be an unconstitutional power grab by the current generation of citizens. This book critically investigates this received interpretation of the Constitution and, by reaching back to the debates among Belgium's 1831 founding fathers, concludes that it is untenable. The spirit, if not the text, of the Belgian Constitution allows for more popular participation than present-day jurisprudence admits. This book is the first to make recent debates in this field accessible to international scholars. It provides a rare source of information on Belgium's 1831 Constitution, which was in its time seen as modern constitutionalism's greatest triumph and which became a model for countless other constitutions. Yet the questions it asks reverberate far beyond Belgium. Combining new insights from law, philosophy, history, and politics, this book is a showcase for continental constitutional theory. It will be a valuable resource for academics and researchers in constitutional law, political and legal philosophy, and legal history. Chapters 3, 4, 11, and 15 of this book are freely available as a downloadable Open Access PDF under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license available at https://www.taylorfrancis.com/books/sovereignty-civic-participation-constitutional-law-brecht-deseure-raf-geenens-stefan-sottiaux/e/10.4324/9781003039525

This book investigates whether national courts could and should import innovative solutions from abroad in the adjudication of complex legal disputes. Special attention is paid to the concept of "legally relevant damage" and its importance in overcoming the deadlock created by the category of "pure economic loss" in the Portuguese and German tort law systems. These systems are essentially based on the concept of unlawfulness ("Rechtswidrigkeit"), which limits the compensation for pure economic loss to where a protective rule is infringed. These losses have nevertheless been compensated for through the extensive interpretation of rules and the appeal to near-contractual devices, which has been detrimental to legal certainty, the equality before the law, and subjects' freedom of action. This book explains why courts can and should take a proactive role and apply DCFR-based solutions in order to compensate for every loss that is worthy of legal protection.

* Offers a user-friendly treatment of the intersection of code, statute, and case law that defines the law of crimes with critical, ethical, and moral emphasis on why certain conduct has been defined and deemed criminal by design * Written from a perspective honoring those entrusted with the many functions and processes related to the law of crimes * Uses a more Socratic method than the competitors by emphasizing the jurisprudential wisdom behind particular laws

Jurisprudential meditation and methodological performance on how feminist and legal thought come into relation. Experiments with genre, style, and form to historicise the relationship of a feminist jurisprudent to her own sources, methods, and interlocutors. The book will be a useful resource for scholars and students of law and humanities, feminism, and history.

Plessy v Ferguson (1897) established racial segregation in American constitutional law for over fifty years and its moral and political legacy lives on, despite attempts in the United States to counter its devastating effects during the last half century. Ironically, in the current debate over affirmative action, Justice Harlan's eloquent dissent has been used to justify attacks on government affirmative action programs. In this book, five distinguished philosophers and constitutional theorists, working from very different theoretical positions, take a fresh critical look at the moral and political principles underlying this historic decision and Harlan's dissent. They also explore the nature and extent of law's complicity in perpetuating Plessy's racialist aims. Emerging from their varied but complementary analyses is a deeper and more nuanced understanding of the social injustice of racial segregation in its historic and contemporary forms and of resources of the law to reverse it.

This book explains the challenge of constitutional pluralism and its importance, showing its theoretical and practical relevance, and giving a sense of why the existing scholarship on the matter is unsatisfactory. The work explores how legal practitioners and theorists have faced the challenge of a society living under two constitutions at the same time. This comes as the European Union, which legally and politically integrates Europe and seems to challenge the view that no State can simultaneously abide by both the venerable national constitutions and the ever-developing EU constitutional law, is increasingly torn between calls for closer integration to face collective challenges and mounting Euroscepticism and nationalism. This work employs a strongly pluralist perspective and a comparative methodology, and looks at constitutional crises outside the EU to ground the claim that pluralism and conflicts are essential elements of modern constitutions. It shows how the challenge of constitutional pluralism depends on a mistaken interpretation of positivist theory and how the latter, reinterpreted in a manner close to legal realism, has the resources to explain pluralism. Finally, the book addresses the issue of constitutional conflicts within the EU: it examines in detail recent cases of open disobedience to EU law by national courts and distinguishes physiological conflict from constitutional pathology. This work will be of particular interest to students and academics in Law and Political Science. It will also be compelling reading for scholars in general jurisprudence, EU law, constitutional and comparative constitutional law, and the history of European integration.