Italian Constitutional Justice in Global Context is the first book ever published in English to provide an international examination of the Italian Constitutional Court (ItCC), offering a comprehensive analysis of its principal lines of jurisprudence, historical origins, organization, procedures, and its current engagement with transnational European law. The ItCC represents one of the strongest and most successful examples of constitutional judicial review, and is distinctive in its structure, institutional dimensions, and well-developed jurisprudence. Moreover, the ItCC has developed a distinctive voice among global constitutional actors in its adjudication of a broad range of topics from fundamental rights and liberties to the allocations of governmental power and regionalism. Nevertheless, in global constitutional dialog, the voice of the ItCC has been almost entirely absent due to a relative lack of both English translations of its decisions and of focused scholarly commentary in English. This book describes the "Italian Style" in global constitutional adjudication, and aims to elevate Italian constitutional jurisprudence to an active participant role in global constitutional discourse. The authors have carefully structured the work to allow the ItCC's own voice to emerge. It presents broad syntheses of major areas of the Court's case law, provides excerpts from notable decisions in a narrative and analytical context, addresses the tension between the ItCC and the Court of Cassation, and positions the development, character, and importance of the ItCC's jurisprudence in the larger arc of global judicial dialog.

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.

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.

Over the course of the last four decades as China's ideological realm has been transformed, it has become significantly more complicated. This is well illustrated in the current discourse concerning China's constitutional future. Among Chinese intellectuals the liberal constitutionalism paradigm is widely accepted. However, more recently, this perspective has been challenged by mainland New Confucians and Sinicized Marxists alike. The former advocate a constitutionalism that is based upon and loyal to the Confucian tradition; while the latter has sought to theorize the current Chinese constitutional order and reclaim its legitimacy. This book presents a discussion of these three approaches, analyzing their respective strengths and weaknesses, and looking to the likely outcome. The study provides a clear picture of the current ideological debates in China, while developing a platform for the three schools and their respective constituencies to engage in dialogue, pluralize the conceptions of constitutionalism in academia, and shed light on the political path of China in the 21st Century. The consequences of this Chinese contribution to the global constitutionalism debate are significant. Notions of the meaning of democratic organization, of the nature of the division of authority between administrative and political organs, of the nature and role of political citizenship, of the construction of rights are all implicated. It is argued that China's constitutional system, when fully theorized and embedded within the global discourse might serve, as the German Basic Law did in its time, as a model for states seeking an alternative approach to the legitimate construction of state, political structures and institutions.

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.

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.

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.

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.

With the exhaustion of postcolonial studies, and following the historical turn in studies of European imperialism, the time is ripe for a more sharply historical consideration of the role of European legal thought in processes of colonial governance. Rather than recycling general theories of the ideological role of law in European colonization, the contributions to this volume focus on the historical interaction between law and politics in British colonial contexts in order to clarify how European legal doctrines and institutions were actually transmitted, negotiated and modified in the concrete circumstances of frontier polities.

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.

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).

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.

The aim of this book is to explore what it means to live a life under the law. Does a life of law preclude love and does a life of love preclude law? Part of the theme of the book is that social questions also raise individual moral and ethical questions; that to live lawfully implies both a question of how I should live in my relations with my fellows and how society should be organised. These questions must be looked at together. The book explores these questions and in looking at the articulation of law and love touches upon debates in personal morality, aesthetics, epistemology, social and political organisation, institutional design and the form and substance of law. It raises questions that are of interest to students and those working in law, theology, and social and political theory.

This book examines in some detail how our concepts of an ideal or universal' audience influence legal argument. It shows how asking what are the arguments and the forms of argumentation that we believe would be accepted by such an audience, is a useful analytical tool. The book explores what, if any, are the constraints that our vision of an ideal audience imposes on public discourse and particularly on legal discourse. Some visions of a universal audience are widely shared; others are only shared within particular political and legal cultures. Stylistic preferences can have as important an influence on legal decision making as do substantive preferences. In some cultures and legal systems there is a preference to resort to broad general principles; in others there is a preference for a more circumscribed and particular mode of legal argument. Different legal cultures have different idealized notions as to the role of the judge. Different conceptions of the role of the judge will influence many aspects of legal decision making, including how statutes and other authoritative official instruments should be interpreted. All these issues will also be influenced by how a particular legal culture envisions the common or public good and by how tolerant a particular legal culture is of diverse outcomes, that is by how much discretion superior legal decision makers are prepared to grant inferior decision makers. This volume will be of interest to academics and professionals in the fields of legal philosophy, argumentation and comparative law.

This book examines the rapid development of the fundamental concept of a crime in international criminal law from a comparative law perspective. In this context, particular thought has been given to the catalyzing impact of the criminal law theory that has developed in major world legal systems upon the crystallization of the substantive part of international criminal law. This study offers a critical overview of international and domestic jurisprudence with regard to the construal of the concept of a crime (actus reus, mens rea, defences, modes of liability) and exposes roots of confusion in international criminal law through a comprehensive comparative analysis of substantive criminal laws in selected legal jurisdictions.

The Idea of a Moral Economy is the first modern edition and English translation of three questions disputed at the University of Paris in 1330 by the theologian Gerard of Siena. The questions represent the most influential late medieval formulation of the natural law argument against usury and the illicit acquisition of property. Together they offer a particularly clear example of scholastic ideas about the nature and purpose of economic activity and the medieval concept of a moral economy. In his introduction, editor Lawrin Armstrong discusses Gerard's arguments and considers their significance both within the context of scholastic philosophy and law and as a critique of contemporary mainstream economics. His analysis demonstrates how Gerard's work is not only a valuable source for understanding economic thought in pre-modern Europe, but also a fertile resource for scholars of law, economics, and philosophy in medieval Europe and beyond.

This book analyses cases of judicial avoidance: what happens when courts leave some or all of the merits of a case undecided? It explores examples of justiciability assessments and deferential approaches regarding the decision of another authority and examines legitimacy issues involving judicial avoidance. The reader is presented with answers to two fundamental questions that guide the development of the book: - Is it legitimate to practise judicial avoidance? - How could judicial avoidance be practised legitimately? The conflict of competences, which often emerges in instances of judicial avoidance, is an important book baseline. From this conflict, the book considers and defends the possibility of applying ‘formal balancing’ to provide a clearer structure of the exercise of justiciability and judicial deference. The ‘formal balancing’ methodology is based on Alexy’s principles theory, and its connection with judicial avoidance represents a significant contribution and novel point in constitutional adjudication.

The debate over race in this country has of late converged on the contentious issue of affirmative action. Although the Supreme Court once supported the concept of racial affirmative action, in recent years a majority of the Court has consistently opposed various affirmative action programs.

The Law of Affirmative Action provides a comprehensive chronicle of the evolution of the Supreme Court's involvement with the racial affirmative action issue over the last quarter century. Starting with the 1974 "DeFunis v. Odegaard" decision and the 1978" Bakke" decision, which marked the beginnings of the Court's entanglement with affirmative action, Girardeau Spann examines every major Supreme Court affirmative action decision, showing how the controversy the Court initially left unresolved in DeFunis has persisted through the Court's 1998-99 term.

Including nearly thirty principal cases, covering equal protection, voting rights, Title VII, and education, The Law of Affirmative Action is the only work to treat the Court decisions on racial affirmative action so closely, tracing the votes of each justice who has participated in the decisions. Indispensable for students and scholars, this timely volume elucidates reasons for the 180 degree turn in opinion on an issue so central to the debate on race in America today.

In response to ETA's 1997 kidnappings and murders thousands of Spaniards attended mass demonstrations to express their contempt for violence as a means of political pressure. The demand that public authorities prosecute and condemn those who directly or indirectly support ETA and its terrorist attacks was one of the most prevalent slogans in the marches. Indeed, the social response was aimed not only against the terrorist group, but also against Herri Batasuna (HB), the political party that openly endorse ETA's armed actions in the Basque Country. From the legal point of view, it is interesting to examine what it is citizens are requesting from the government in the above-mentioned case. How do these collective claims translate into legal language? One may think it fit to answer that Spanish citizens want violence to be met with the institutional punishment prescribed by the legal order. Nonetheless, it could also be argued that citizens in fact demand that certain kinds of behaviour be regulated by the law in their country. While from the latter viewpoint citizens wish for the creation of new legal norms, from the former they are just calling for the application of the law. What reasons may render us inclined to sympathise with one of these two views rather than the other? Which one of these two options is most appropriate? At first sight, this may appear to be a simple question.

Modern states claim rights of jurisdiction and control over particular geographical areas and their associated natural resources. Boundaries of Authority explores the possible moral bases for such territorial claims by states, in the process arguing that many of these territorial claims in fact lack any moral justification. The book maintains throughout that the requirement of states' justified authority over persons has normative priority over, and as a result severely restricts, the kinds of territorial rights that states can justifiably claim, and it argues that the mere effective administration of justice within a geographical area is insufficient to ground moral authority over residents of that area. The book argues that only a theory of territorial rights that takes seriously the morality of the actual history of states' acquisitions of power over land and the land's residents can adequately explain the nature and extent of states' moral rights over particular territories. Part I of the book examines the interconnections between states' claimed rights of authority over particular sets of subject persons and states' claimed authority to control particular territories. It contains an extended critique of the dominant "Kantian functionalist " approach to such issues. Part II organizes, explains, and criticizes the full range of extant theories of states' territorial rights, arguing that a little-appreciated Lockean approach to territorial rights is in fact far better able to meet the principal desiderata for such theories. Where the first two parts of the book concern primarily states' claims to jurisdiction over territories, Part III of the book looks closely at the more property-like territorial rights that states claim - in particular, their claimed rights to control over the natural resources on and beneath their territories and their claimed rights to control and restrict movement across (including immigration over) their territorial borders.