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.

There is more to law than rules, robes and precedents. Rather, law is an integral part of social practices and policies, as diverse and complex as society itself.Thinking About Law offers a comprehensive introduction to the ways in which law has been presented and represented. It explores historical, sociological, economic and philosophical perspectives on the major legal and political debates in Australia today.The contributors examine the position of Aborigines in the Australian legal system and the impact of the Mabo case; divisions of power in Australian society and law; the question of objectivity in law; the relationship between legislation and social change; judicial decision-making and other issues.Accessibly written, Thinking About Law is essential reading for students and anyone interested in understanding our legal system.

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.

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.

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.

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.

The Lives and Works of Eminent Jurists From the Last Two Thousand Years. Written by a team of eminent scholars under the auspices of the Association of American Law Schools, this highly readable book covers the lives and chief works of selected eminent Classical, Continental and English jurists including Gaius, Papinian, Ulpian, Bartolus, Alciati, Cujas, Gentili, Hugo Grotius, Selden, Hobbes, Zouche, Pufendorf, Vico, Bynkershoek, Montesquieu, Pothier, Vattel, Beccaria, Bentham, Mittermaier, Savigny and Jhering. Originally published in the Continental Legal History Series. (1914). Contains: GAIUS by James Crawford Ledlie PAPINIAN by E.C. Clark DOMITIUS ULPIAN by James Crawford Ledlie BARTOLUS by the late Sir William Ratigan ANDREA ALCIATA AND HIS PREDECESSORS by Coleman Phillipson ALBERICUS GENTILIS by Coleman Phillipson FRANCIS BACON, BARON VERULAM by James E.G. De Montmorency HUGO GROTIUS by the late Sir William Ratigan JOHN SELDEN by Edward Manson THOMAS HOBBES by James E.G. De Montmorency RICHARD ZOUCHE by Coleman Phillipson JEAN BAPTISTE COLBERT by H.A. De Colyar GOTTFRIED WILHELM VON LEIBNITZ by Sir John MacDonell SAMUEL VON PUFENDORF by Coleman Phillipson GIOVANNI BATTISTA VICO by Michael Rafferty CORNELIUS VAN BYNKERSHOEK by Coleman Phillipson CHARLES LOUIS DE SECONDAT, BARON DE LA BREDE ET DE MONTESQUIEU by Sir Courtenay Ilbert ROBERT JOSEPH POTHIER by James E.G. De Montmorency EMERICH DE VATTEL by Coleman Phillipson CAESAR BONESANA, MARQUIS DI BECCARIA by T. Bridgwater WILLIAM SCOTT, LORD STOWELL by Norman Bentwick JEREMY BENTHAM by John Maxcy Zane CAROL JOSEPH ANTON MITTERMAIER by Levin Goldschmidt FRIEDRICH CAN VON SAVIGNY by James E.G. De Montmorency RUDOLPH VON IHERING by Sir John MacDonell"

This book is based on the observation that international law is undergoing a process of change and modernization, driven by many factors, among which the affirmation and consolidation of the role of the individual and of the theory of human rights stand out. In the contemporary world, international law has demonstrated an ability to evolve rapidly. But it is still unclear whether its modernization process is also producing structural changes, which affect the subjects, the sources and even the very purpose of this law. Is it truly possible to speak of a paradigmatic and ideological change in the international legal system, one that also involves a transition from a state-centred international order to a human-centred one, and from inter-state justice to global justice?The book addresses three fundamental aspects of the modernization process of international law: the possible widening of the concept of international community and of the classic assumptions of statehood; the possible diversification of the sources of general international law; and the ability of international law to adapt to new challenges and to achieve the main goals for humanity set by the United Nations.The overall objective of the book is to provide the tools for a deeper understanding of the transition phase of contemporary international law, by examining the major problems that characterize this phase. The book will also stimulate critical reflection on the future prospects of international law.

This book provides a comparative perspective on one of the most intriguing developments in law: the influence of basic rights and human rights in private law. It analyzes the application of basic rights and human rights, which are traditionally understood as public law rights, in private law, and discusses the related spillover effects and changing perspectives in legal doctrine and practice. It provides examples where basic rights and human rights influence judicial reasoning and lead to changes of legislation in contract law, tort law, property law, family law, and copyright law. Providing both context and background analysis for any critical examination of the horizontal effect of fundamental rights in private law, the book contributes to the current debate on an important issue that deserves the attention of legal practitioners, scholars, judges and others involved in the developments in a variety of the world's jurisdictions. This book is based on the General Report and national reports commissioned by the International Academy of Comparative Law and written for the XIXth International Congress of Comparative Law in Vienna, Austria, in the summer of 2014.

This detailed analysis of the content and configuration of civil codes in diverse jurisdictions also examines their relationship with some branches of private law as: family law, commercial law, consumer law and private international law. It analyzes the codification, decodification and recodification processes illuminating the dialogue between current codes - and private law legislation in general - with Constitutions and International Conventions.

The commentary elucidates the changing requirements of civil law as it shifted from an early protection of patrimony to a support for commercial and contractual law. It also explains the varying trajectories of civil law, which in some jurisdictions was merged with religious legal tenets in its codification of familial relations, while in others it was fused with commercial law or, indeed, codified from scratch as a discrete legal corpus. Elsewhere, the volume provides material on differing approaches to consumer law, where relevant legislation may be scattered across numerous statutes, and also on private international law, a topic of increasing relevance in a world where business corporations have interests in multiple jurisdictions (and often play one off against another).

The volume features invited contributions from leading scholars in the field of private law brought together for an in depth analysis of the current regulatory attitude in this field of the law in jurisdictions with diverse legal systems and traditions. In current times we are witnessing the adoption of diverging regulatory solutions. Through the analysis of the past and present of private law regulation, the volume unveils the underlying trends and relevance of the codification method across the world.

This book is an adaptation of my PhD thesis Representing L3gVI Rules in Deontic Logic Royakkers, 1996]. The main alterations are: The addition of chapter 2 concerning the semantics of deontic logic based on valua tions. In this chapter I extend the Beth tableau method, which is originally developed for the propositional calculus, to also be applicable for deontic logic. For those who are not familiar with deontic logic or with the axiomatic deduction, this method is a useful tool to check whether a formula is valid or not. The addition of the notion of commitment in chapter 5, and the notion of weak and strong permission in chapter 7. The omission of the chapter concerning defeasible deontic logic, of which a revised version is published in Nute, 1997]. Chapter 6 has been revised rather thoroughly. Here I introduce the logic of enact ment based on epistemic logic and local reasoning to express normative inconsis tencies in a consistent way. I wish to thank John-Jules Meyer, Giovanni Sartor and Marek Sergot for their suggestions and criticisms of my PhD thesis, which have improved this book. Heleen Neggers and Jan Draisma deserve credit for the layout. Special thanks go to Frank Dignum for his continuous support and inspiring sugges tions. v Contents 1 Introduction 1 1.1 Logic and law. . . . . . . . . . . . . . . . . . . . . . .. . . . 1 . . . 1.2 Conflicting speed limits . . . . . . . . . . . . . . . . . . .. . . . 3 . ."

This collection offers a timely opportunity to re-examine both the coherence of the concept of an 'early Enlightenment', and the specific contribution of natural law theories to its formation. It reassesses the work of major thinkers such as Grotius, Hobbes, Locke, Malebranche, Pufendorf and Thomasius, and evaluates the appeal and importance of the discourse of natural jurisprudence both to those working inside conventional educational and political structures and to those outside.

Talk about law often includes reference to ideals of justice, equality or freedom. But what do we refer to when we speak about ideals in the context of law? This book explores the concept of ideals by combining an investigation of different theories of ideals with a discussion of the role of ideals in law. A comparison of the theories of Gustav Radbruch and Philip Selznick leads up to a pragmatist theory of legal ideals, which provides an interesting new position in the debate about values in law between legal positivists and natural law thinkers. Attention for law's central ideals enables us to understand law's autonomous character, while at the same time tracing its connection to societal values.
Essential reading for anyone interested in the role of values or ideals in law.

We cannot see the world as it is because we face it in a 'contaminated' vein. That is, our conceptual scheme and biological constitution condition our world view. The legal normative world we are dealing with has some special features, like the primacy of practical reason over theoretical reason and the primacy of the internal point of view over the external point of view. Although it is not a feature of all legal traditions, 'legal dogmatics' is a privileged way of knowing legal normative object, that is, our legal orders. But we are not undertaking - as legal scholars - an empiricist enterprise because, among other reasons, we are not interested in the reality 'in itself' but in the 'relevant' reality, at least for us. In this respect, we do not only depend on theories (like physicists) but also on legal authoritative sources, that is, power and legitimacy. Legal scholars (and other participants in the legal life) are not neutral observers of their own world, trying to discover some hidden truth. They are committed experts trying to describe, justify and improve the legal order.

This book is an investigation into Carl Schmitt's critical thinking regarding the alleged deficiencies he identified in modern liberalism. Noted jurist, constitutional scholar, and a fierce critic of liberalism and pluralism, Schmitt mounted a sustained attack on the defects of the Weimar constitution between 1916 and 1934, contending that what Germany needed was a strong decisive leader to maintain political unity. This book provides a concise and clear explanation of Schmitt's disagreements with other constitutional scholars, from his time as a university graduate up until Hitler's rise to power. Although these disagreements were couched in legal terminology, they represented political criticisms that went directly to the heart of modern democracy, culminating in Schmitt's defence of the Reich against Prussia in the constitutional crisis of 1932. The book concludes with a strenuous defence of modern liberalism in response to the Schmittian critique. Thus, this book is not just an exploration of Carl Schmitt's work, but a response to one of the harshest attacks on the modern liberal state, and a blueprint for a renewal of democracy, pluralism, and the rule of law.

On the eight-hundredth anniversary of the Magna Carta, Women and the Magna Carta investigates what the charter meant for women's rights and freedoms from an historical and legal perspective.

This book centres on Samuel Pufendorf's (1632-1694) moral and political philosophy, a subject of recently renewed interest among intellectual historians, philosophers and legal scholars in the English-speaking world. Pufendorf's significance in conceptualizing sociability in a way that ties moral philosophy, the theory of the state, political economy, and moral psychology together has already been acknowledged, but this book is the first systematic investigation of the moral psychological underpinnings of Pufendorf's theory of sociability in their own right. Readers will discover how Pufendorf's psychological and social explanation of sociability plays a crucial role in his natural law theory. By drawing attention to Pufendorf's scattered remarks and observations on human psychology, a new interpretation of the importance of moral psychology is presented. The author maintains that Pufendorf's reflection on the psychological and physical capacities of human nature also matters for his description of how people adopt sociability as their moral standard in practice. We see how, since Pufendorf's interest in human nature is mainly political, moral psychological formulations are important for Pufendorf's theorizing of social and political order. This work is particularly useful for scholars investigating the multifaceted role of passions and emotions in the history of moral and political philosophy. It also affords a better understanding of what later philosophers, such as Smith, Hume or Rousseau, might have find appealing in Pufendorf's writings. As such, this book will also interest researchers of the Enlightenment, natural law and early modern philosophy.

The concept of learning to 'think like a lawyer' is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of 'thinking like a lawyer' or 'pure lawyering' aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering's potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors. This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on 'thinking like a lawyer' beyond the litigation arena.

autonomy principally in tenns of the agent's conscious choice of ends or conduct. From this, the cognitivist emphasis on mental states and their contents naturally follows. The presence of specified mental states, as signifying agent choice, thus becomes the hallmark of responsible conduct. Capacities model theorists, by contrast, interpret personal autonomy and agent responsibility in tenns of the looser notion of 'control'. From this perspective, conscious choosing is but one (highly responsible) instance of such control, and the presence or absence of mental states is primarily relevant to detennining degrees of responsibility. The examination of these two models occupies the bulk of this manuscript. Exploration of the capacities model and criticism of the orthodox view also generate treatment of legal issues such as the use of negligence liability, the nature of criminal omissions, the character of various legal defenses, and so on. Chapters 2 and 3 set out some of the thematic arguments outlined above and introduce tenninology and useful distinctions. Chapters 4 through 7 provide substantive analyses of agent responsibility and of standards of criminal liability. In these chapters, I argue for the comparative superiority of the capacities model of responsibility and offer recommendations for changes in current legal conceptions and standards of liability. Each chapter centers on an element of individual responsibility and related legal concerns. The final chapter, Chapter 8, comprises an overview of the integrated theory of responsibility and liability and its comparison with the traditional view.

Recent years have seen a resurgence of interest, among both philosophers, legal scholars, and military experts, on the ethics of war. Due in part due to post 9/11 events, this resurgence is also due to a growing theoretical sophistication among scholars in this area. Recently there has been very influential work published on the justificaton of killing in self-defense and war, and the topic of the ethics of war is now more important than ever as a discrete field. The 28 commissioned chapters in this Handbook will present a comprehensive overview of the field as well as make significant and novel contributions, and collectively they will set the terms of the debate for the next decade. Lazar and Frowe will invite the leading scholars in the field to write on topics that are new to them, making the volume a compilation of fresh ideas rather than a rehash of earlier work. The volume will be dicided into five sections: Method, History, Resort, Conduct, and Aftermath. The contributors will be a mix of junior and senior figures, and will include well known scholars like Michael Walzer, Jeff McMahan, and David Rodin.

Who presupposes Kelsen's basic norm? Is it possible to defend the presupposition in a way that is convincing? And what difference does the presupposition make? Endeavouring to highlight the role of basic assumptions in the law, the author argues that the verb "to presuppose', with Kelsen, has not only a conceptual but also a normative dimension; and that the expression 'presupposing the basic norm'is adequate in so far as it marks the descriptive-normative nature of utterances made in specifically legal speech-situations.
Addressed to legal theorists in general, the treatise purports to show that Kelsen's doctrine lends itself to an interpretation according to which the very act of "presupposing" the Grundnorm can be understood as a Grund, i.e. normative source of all positive law; and, what is more, that this interpretation admits of addressing the issue of the (formal) legitimacy of supra-national and directly applicable rules and other norms.

The close connection between philosophy of language and philosophy of law has been recognized for decades through the work of many influential legal philosophers. This volume brings recent advances in philosophy of language to bear on contemporary debates about the nature of law and legal interpretation. The book builds on recent work in pragmatics and speech-act theory to explain how, and to what extent, legal content is determined by linguistic considerations. At the same time, the analysis shows that some of the unique features of communication in the legal domain - in particular, its strategic nature - can be employed to put pressure on certain assumptions in philosophy of language. This enables a more nuanced picture of how semantic and pragmatic determinants of communication work in complex and large-scale systems such as law. Chapters build on explanations of key elements of statutory language, such as the distinction between what is said and what is implicated, the possibility of ascribing truth-values to legal prescriptions and the structure of legal inferences, the various forms of vagueness in the law, the distinctions between vagueness, ambiguity, and polysemy in legal language, and the distinction between concept and conceptions, mostly in the context of constitutional interpretation. The book demonstrates that paying close attention to the kind of speech acts legal directives are, and how they determine the content of the law, enables a better understanding of the boundaries between normative and linguistic determinants of legal content.

This volume brings together papers that offer conceptual analyses, highlight issues, propose solutions, and discuss practices regarding privacy and data protection. The first section of the book provides an overview of developments in data protection in different parts of the world. The second section focuses on one of the most captivating innovations of the data protection package: how to forget, and the right to be forgotten in a digital world. The third section presents studies on a recurring, and still important and much disputed, theme of the Computers, Privacy and Data Protection (CPDP) conferences : the surveillance, control and steering of individuals and groups of people and the increasing number of performing tools (data mining, profiling, convergence) to achieve those objectives. This part is illustrated by examples from the domain of law enforcement and smart surveillance. The book concludes with five chapters that advance our understanding of the changing nature of privacy (concerns) and data protection.

This book deals with a central problem throughout the legal profession -a solution to the problem is sought and reached in some basic form. At the centre of this prob lematic is the question indicated by the title: "What is the nature of "discovery" in legal decision-making?" In the final chapter that problem and the solution reached will be seen to have ramifications throughout the entire field of legal practice and theory. However, the focus of the argument is maintained first to specify adequately the particular manifestation of the problem in a variety of legal fields and secondly to arrive at a precise basic solution to this range of problems. The presentation of the solution is not dictated by the norms of clarity and coherence, but by the dynam ics of the struggle to reach the solution and by aspects of the problem available to various sub-groups within the legal profession -theorists, judges, arbitrators. So, I begin from a relatively familiar zone, discussions of discovery in legal theory before moving to more unfamiliar territory. This book is not a thorough survey of problems and writings on discovery. Rather, the strategic selection of problems and assessment of solutions across the first four chapters represents four aspects of the problem. Those chapters invite the reader to rise to the sense of occurrence of a single problem in a variety of contexts."

What is fair? How and when can punishment be legitimate? Is there recompense for human suffering? How can we understand ideas about immortality or an afterlife in the context of critical thinking on the human condition? In this book L. E. Goodman presents the first general theory of justice in this century to make systematic use of the Jewish sources and to bring them into a philosophical dialogue with the leading ethical and political texts of the Western tradition. Goodman takes an ontological approach to questions of natural and human justice, developing a theory of community and of nonvindictive yet retributive punishment that is grounded in careful analysis of various Jewish sources-biblical, rabbinic, and philosophical, His exegesis of these sources allow Plato, Kant, and Rawls to join in a discourse with Spinoza and medieval rationalists, such as Saasidah and Maimonides, who speak in a very different idiom but address many of the same themes. Drawing on sources old and new, Jewish and non-Jewish, Goodman offers fresh perspectives on important moral and theological issues that will be of interest to both Jewish and secular philosophers.