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While common law is developed by the courts and judges may well be the prime authorities for the development of law, and while French private law is said to be the origin of the idea of modern codification and grand legislatures, German private law can well be seen as the law where the influence of academia is paramount. It is perhaps fair to say that no other code is as strongly influenced by scholars as the German Civil Code of 1900. Furthermore, in both the past and the present, courts and scholars in Germany are in constant dialogue about the application and interpretation of German and also EU law. Arguably, this is also one of the reasons why German academia plays such a promi-nent - some may say excessively dominant - role in the European private law discourse and development. As a result it seems necessary, indeed vital, to shed more light on professors who were highly influential in the development of German private law in the 20th century.They fostered such concepts and ideas as the birth of modern market and institutional regulation, genuine interna-tionalisation, in particular through comparative law, and Europeanisation of private law, 'social' areas of the law, particularly labour and consumer law and fundamental rights' protection be-tween private parties, and equally the law of competition and enterprise. This book compiles and puts into perspective portraits of 36 professors of private law from Germany, Austria and Switzerland who completed the core of their academic oeuvre in the 20th century. The individual portraits of the life and work of each professor are written by one of their former 'Schuler' and taken together show the thread of the intellectual history of legal thinking in 20th century German private law
Depression is amorphous. It defies easy generalization, and eludes medical and legal categories. Is it part of the self, or its predator? Can a sufferer be held responsible for their actions? This edited collection provides a holistic study of a protean illness. If the law is to regulate the lives of those who suffer from depression, it is vital that lawyers understand the condition. Drawing upon a wide-ranging expertise, this volume looks at depression from four viewpoints: that of the sufferer, the clinician, the ethicist, and the lawyer. Topics covered include the cultural history of depression; causes, epidemiology, and diagnosis; the autonomy debate; criminal responsibility; public health law; depression in the workplace; depression and children; and assisted suicide. First-hand accounts from sufferers are followed by contributions from clinicians who say what depression is, outline its demography and therapeutic options, and indicate the legal and ethical problems that trouble them the most. The essays then go on to explore legal and ethical questions in depth. This collection is essential reading for lawyers seeking a broader understanding of depression, and non-lawyers seeking an insight into the difficulty law has engaging with the condition.
Legal norms may forbid, require, or authorize a particular form of behavior. The law of contracts, for example, informs people how to enter into agreements that will bind both sides, and from this we establish legal requirements on how they should behave. In public law, legal standards provide authority to legislators and executive officials to set standards for citizens, and also give judges the authority to decide disputes by applying and interpreting governing standards. In Realms of Legal Interpretation, Kent Greenawalt focuses on how courts decide what is legally forbidden or authorized, and how context shapes their decisions. The problem, he argues, is that we do not, and never have, agreed exist on all the details of the standards United States judges should employ-like everyone else, judges have different ideas of what constitutes good common sense. Moreover, circumstance regularly throws up hurdles. For instance, what should a judge do if the text of a statute does not fit the intention of the legislators, or if someone has obviously and mistakenly omitted a necessary item from a will or contract? Different judges react in different ways. Acknowledging that courts will never agree upon a uniform approach to applying norms and interpreting the law, Greenawalt's aim is to provide a capacious, user-friendly model for approaching hard cases sensibly in both public and private law. Just as importantly, the book serves as a pithy guide to the major forms of legal interpretation for nonlawyers. Ultimately, Realms of Legal Interpretation represents a pithy distillation of Greenawalt's many works on the theories that anchor legal interpretation in America's legal system.
A landmark work of political and legal philosophy, Ronald Dworkin's Taking Rights Seriously was acclaimed as a major work on its first publication in 1977 and remains profoundly influential in the 21st century. A forceful statement of liberal principles - championing the legal, moral and political rights of the individual against the state - Dworkin demolishes prevailing utilitarian and legal-positivist approaches to jurisprudence. Developing his own theory of adjudication, he applies this to controversial public issues, from civil disobedience to positive discrimination. Elegantly written and cuttingly insightful, Taking Rights Seriously is one of the most important works of public thought of the last fifty years.
French legal culture, from the Middle Ages to the present day, has had an impressive influence on legal norms and institutions that have emerged in Europe and the Americas, as well as in Asian and African countries. This volume examines the lives of twenty-seven key legal thinkers in French history, with a focus on how their Christian faith and ideals were a factor in framing the evolution of French jurisprudence. Professors Olivier Descamps and Rafael Domingo bring together this diverse group of distinguished legal scholars and historians to provide a unique comparative study of law and religion that will be of value to scholars, lawyers, and students. The collaboration among French and non-French scholars, and the diversity of international and methodological perspectives, gives this volume its own unique character and value to add to this fascinating series.
The intersection between law and neuroscience has been a focus of intense research for the past decade, as an unprecedented amount of attention has been triggered by the increased use of neuroscientific evidence in courts. While the majority of this attention is currently devoted to criminal law, including capital cases, the wide-ranging proposals for how neuroscience may inform issues of law and public policy extend to virtually every substantive area in law. Bringing together the latest work from leading scholars in the field, this volume examines the philosophical issues that inform this emerging and vibrant subfield of law. From discussions featuring the philosophy of the mind to neuroscience-based lie detection, each chapter addresses foundational questions that arise in the application of neuroscientific technology in the legal sphere.
Governing Sexuality explores issues of sexual citizenship and law reform in the United Kingdom and Continental Europe today. Across western and eastern Europe,lesbians and gay men are increasingly making claims for equal status, grounded in the language of rights and citizenship, and using the language of international human rights and European law. This book uses same sex sexualities as a prism through which to explore broader questions of legal and political theory concerning democratic legitimacy; rights discourse; national sovereignty and identity; citizenship; transnationalism; and globalisation. Case studies are widely drawn: from New Labour's sexual politics in the UK to the decriminalisation of same-sex sexualities under pressure from the EU in Romania; to new civil solidarity laws in France.
"Starkly essentialist reasoning sounds almost quaint by today's
standards of gender equality. So it is with some surprise that
general readers will encounter an intense and carefully reasoned
defense of essentialism from the pen of one of America's best-known
feminist legal theorists."
"By critiquing traditional ideas about 'justice, ' including
economic theories about value, this provocative feminist
jurisprudential scholar advances what she calls an 'ethic of care'
and argues that 'if adjudication is to be just, then the goal of
good judging must be both justice and care.'"
Over the past decade, mainstream feminist theory has repeatedly and urgently cautioned against arguments which assert the existence of fundamental--or essential--differences between men and women. Any biological or natural differences between the sexes are often flatly denied, on the grounds that such an acknowledgment will impede women's claims to equal treatment.
In "Caring for Justice," Robin West turns her sensitive, measured eye to the consequences of this widespread refusal to consider how women's lived experiences and perspectives may differ from those of men. Her work calls attention to two critical areas in which an inadequate recognition of women's distinctive experiences has failed jurisprudence. We are in desperate need, she contends, both of a theory of justice which incorporates women's distinctive moral voice on the meaning of justice into our discourse, and of a theory of harm which better acknowledges, compensates, and seeks to prevent the various harms which women, disproportionately and distinctively, suffer.
Providing afresh feminist perspective on traditional jurisprudence, West examines such issues as the nature of justice, the concept of harm, economic theories of value, and the utility of constitutional discourse. She illuminates the adverse repercussions of the anti-essentialist position for jurisprudence, and offers strategies for correcting them. Far from espousing a return to essentialism, West argues an anti- anti-essentialism, which greatly refines our understanding of the similarities and differences between women and men.
The reader is invited to follow a route that visits Fish's view of theory and practice,Raz's legal reasoning thesis, theoretical models of judicial review, Dworkin's right answer thesis, the law of the excluded middle and Lukasiewicz's development of three-valued logic, Wittgenstein's language games, and Moore's metaphysical realism. The destination is the practice at the heart of legal reasoning. It is suggested that this manifests the way in which the limitations of language and the incompleteness of human experience allow the opportunity for coherent development of the law and at the same time produce an inherent incoherence within the law. The central part of the book seeks to demonstrate how the problems of understanding legal reasoning replicate difficulties encountered in the philosophy of language, but challenges the attempts that have been made to harness approaches from within that discipline to illuminate legal reasoning. Instead it is argued that law provides an unrivalled test-bed for examining the limits of the capacity of our words, and that the study of law may be used to confront in a robust and illuminating manner the limitations of that discipline. The final chapter considers some of the implications of recognising the incoherence at the heart of legal reasoning, commenting on an institutional approach to law, the legitimacy of law, legal definitions, different approaches to legal reasoning, the role of appellate courts, the general possibility of providing a theoretical model of law, the use of legal rules, and the nature of law's critical aperture. The book should be of interest to advanced undergraduate students (particularly on jurisprudence courses), postgraduate students, academics, and practitioners concerned to reflect on the nature of the discipline they practice.
Paradigmatic transition is the idea that ours is a time of transition between the paradigm of modernity, which seems to have exhausted its regenerating capacities, and another, emergent time, of which so far we have seen only signs. Modernity as an ambitious and revolutionary sociocultural paradigm based on a dynamic tension between social regulation and social emancipation, the prevalent dynamic in the sixteenth century, has by the twenty-first century tilted in favour of regulation, to the determent of emancipation. The collapse of emancipation into regulation, and hence the impossibility of thinking about social emancipation consistently, symbolizes the exhaustion of the paradigm of modernity. At the same time, it signals the emergence of a new paradigm or new paradigms. This updated 2020 edition is written for students taking law and globalization courses, and political science, philosophy and sociology students doing optional subjects.
Why do some people take a neighbor to court over a barking dog or some other nuisance while others accept the pains and losses associated with defective products or discrimination without seeking legal recourse? Patricia Ewick and Susan S. Silbey collected accounts of the law from more than four hundred people of diverse backgrounds in order to explore the different ways that people use and experience it. Their fascinating and original study identifies three narratives of law common to the stories people tell. One is based on the perception that the law is magisterial and remote. Another views the law as a game with rules that can be manipulated to one's advantage. A third describes the law as an arbitrary power that can be actively resisted. Drawing on these extensive case studies, Ewick and Silbey interweave individual experiences with an analysis that constructs a coherent and compelling theory of legality. A groundbreaking study of law and narrative, The Common Place of Law shows an institution as it is lived: strange and familiar, imperfect and ordinary, and at the center of daily life.
Following the successful publication of his first volume4 of essays intitled FOREIGN LAW AND COMPARATIVE METHODOLOGY professor Markesinis continues his quest for the best way of presenting foreign law to Common law readers. This second volume thus contains essays on methodology: the horizontal application of human rights; the tortious liability of statutory bodies; the growing impact of human rights law on our law of torts; the differing approaches to problems raised by action for wrongful life and wrongful birth; differing judicial styles and what they can tell us about a foreign system, as well as the growing use of foreign law by British judges in their judicial and extra judicial work. These essays, along with their rich bibliographical references, will provide much food for thought to practitioners in these above-mentioned areas of the law as well as teadhers and researchers in the fields of public law, foreign law and legal methodology.
Stephen Darwall presents a series of essays that explore the view that central moral concepts are irreducibly second-personal, in that they entail mutual accountability and the authority to address demands. He illustrates the power of the second-personal framework to illuminate a wide variety of issues in moral, political, and legal philosophy. Section I concerns morality: its distinctiveness among normative concepts; the metaethics of 'bipolar obligations' (owed to someone); the relation between moral obligation's form and the substance of our obligations; whether the fact that an action is wrong is itself a reason against action (as opposed to simply entailing that sufficient moral reasons independently exist); and whether morality requires general principles or might be irreducibly particularistic. Section II consists of two essays on autonomy: one discussing the relation between Kant's 'autonomy of the will' and the right to autonomy, and another arguing that what makes an agent's desires and will reason giving is not the basis of 'internal' practical reasons in desire, but the dignity of persons and shared second-personal authority. Section III focuses on the nature of authority and the law. Two essays take up Joseph Raz's influential 'normal justification thesis' and argue that it fails to capture authority's second-personal nature, without which authority cannot create 'exclusionary' and 'preemptive' reasons. The final two essays concern law. The first sketches the insights that a second-personal approach can provide into the nature of law and the grounds of distinctions between different parts of law. The second shows how a second-personal framework can be used to develop the 'civil recourse theory' in the law of torts.
This collection of essays explore the long-standing,intricate relationship between law and faith. Faith in this context is to be read in the broadest sense, as extending beyond religion to embrace the knowledge, beliefs, understandings and practices which are at work alongside the familiar and seemingly more reliable, trusted and relatively certain content and conventionally accepted methods of law and legal reasoning. The essays deal with three broad themes. The first concerns the extent to which faith should be involved in legal decision making. Ought decisions to aspire simply to right reason or ought faith-based models of decision-making to be incorporated into the legal system? If the latter, how is this best done? Ought faith to operate simply as a reason itself or ought it to help to structure the method by which legal decisions are reached? The second, and perhaps most familiar theme, stemming in part from rights discourse, is the extent to which law does, and ought to, respect the rights of those whose religious beliefs conflict with the dominant social norms and practices. Liberal democratic constitutions typically provide protection for religion and religious beliefs. Are these justified, and if so how? Can such protection as exists suffice from the perspective of the faithful, or does law's otherwise pervasive agnosticism make this impossible or illusory? Thirdly, questions of identity and difference arise. Assuming that most societies remain a mix of many faiths (religious and secular) and no faith, how should law and legal theory understand the varying and, it must be said, conflicting claims for recognition. Should we encourage conformity in the hope of reducing friction, or should we preserve and promote difference, seeking to understand others, whether groups or individuals, without removing that which makes them distinct? More radically and controversially, should we be more sceptical of individual and group claims to authenticity and see them rather as strategies in an ongoing power game? Faith after all, like reason and law, has never been far from politics and intrigue, especially in its institutional representation. Contributors: Zenon Bankowski, Anthony Bradney, Claire Davis, John Gardner, Adam Gearey, Tim Macklem, Maleiha Malik, Victor Tadros.
Analytical jurisprudence often proceeds with two key assumptions: that all law is either contained in or traceable back to an authorizing law-state, and that states are stable and in full control of the borders of their legal systems. What would a general theory of law be like and do if these long-standing presumptions were loosened? The Unsteady State aims to assess the possibilities by enacting a relational approach to explanation of law, exploring law's relations to the environment, security, and technology. The account provided here offers a rich and renewed perspective on the preconditions and continuity of legal order in systemic and non-systemic forms, and further supports the view that the state remains prominent yet is now less dominant in the normative lives of norm-subjects and as an object of legal theory.
This book deals with aspects of legal education and legal traditions. Part I includes chapters on teaching Law of the Sea, legal ethics and educating lawyers as 'transaction cost engineers' as well as comparison of teaching law in a refugee camp and in a Malaysian University. Part II on legal and philosophical traditions includes essays on what later philosophers would have commented on Plato's arguments in the Crito regarding 'absolute obligation to obey the law' and what Socrates would have said on two conversations in the 19th century novel Uncle Tom's Cabin regarding the morality and legality of harbouring runaway slaves. Part II concludes with two essays regarding the applicability of the Hart-Devlin debate on the 'enforcement of morals' vis-a-vis the International Criminal Court and an essay on what the historian Arnold Toynbee would have commented on the 'contingency' v 'teleology' debate between two palaeontologists the late Stephen Jay Gould and Simon Conway Morris. * Legal education of interest to legal educators and students * Legal, political, moral philosophy as well as philosophy of history of interest to law, philosophy and history teachers, postgraduate and under graduate students* Aspects of legal ethics for law teachers, students and legal professionals* Interdisciplinary studies regarding law and economics, law and literature, law and social justice for law, humanities, social science academics and students.
This volume provides an overview of selected major areas of legal and institutional development in Lithuania since the Restoration of Independence in 1990. The respective chapters discuss changes in fields varying from the constitutional framework to criminal law and procedure. The content highlights four major aspects of the fundamental changes that have affected the entire legal system: the Post-Soviet country's complex historical heritage; socio-political and other conditions in the process of adopting new (rule of law) standards; international legal influences on the national legal order over the past 30 years; and finally, the search for entirely new national legal models. Over a period of 30 years since gaining its independence from the Soviet Union, Lithuania has undergone unique social changes. The state restarted its independent journey burdened by the complicated heritage of the Soviet legal system. Some major reforms have taken place swiftly, while others have required years of thorough analysis of societal needs and the search for optimal examples in other states. The legal system is now substantially different, with some elements being entirely new, and others adapted to present needs.
This book's focus makes statutes, and the processes that produce them, the primary consideration. Traditional teaching materials tend to make statutes and the circumstances of their creation secondary; students encounter the legislative process and legislative materials chiefly, sometimes exclusively, through the eyes of judges. In contrast, two of the three principal chapters of this book are organized around the enactment of two particular statutes - one late Nineteenth Century, the second late Twentieth Century. These chapters expose students to primary documents reflecting the quite different processes by which these two statutes were enacted, and invite them to reach conclusions about their meaning, in advance of any exposure to judicial interpretations - just as lawyers would typically be required to do in practice. The latter of these two chapters also includes extensive selections from the secondary literature to help put the current debates between textualists and purposivists in sharp focus. The intervening chapter deals in a more conventional way with the development and use of the purpose/intent-oriented methods of interpretation that characterized mid-Twentieth Century judicial practice. This chapter, in which judicial decisions predominate, often sets a statutory problem as a prologue to the case -- highlighting the statutory issue and inviting the student to do her own interpretive analysis before encountering the judges' opinion.
In recent decades, scholars in the fields of law and theological ethics have begun to explore how religious insights might inform both jurisprudence and practical lawmaking at all levels of government. On Secular Governance offers a distinctive Lutheran focus on how individuals and societies can participate in God's work of creating a just and trustworthy world through law. This volume comprises essays by legal and theological scholars from the United States, Africa, Latin America, and Europe collaboratively addressing a wide range of practical subjects - women's issues, property law and the environment, immigration reform, church-state questions, and more. Providing uniquely Lutheran insights, this accessible text is an important contribution to the larger human conversation about how we should order our common life in this world.
This book explores the various connections between Law and Opera, providing a comprehensive, multinational, and multidisciplinary (with approaches from jurists, philosophers, musicologist, historians) resource on the subject. Further, it makes a valuable contribution to studies on law and the humanities. While, for example, the relationship between law and literature has been extensively researched, the relationship between Law and Opera remains largely overlooked. The book approaches the topic from three perspectives in three main sections: Law in Opera, Law on Opera, and Law around Opera.
The traditional grand narratives of European legal history have begun to be questioned, to the extend that the nature and legacy of legal humanism now deserve closer scrutiny. Building on the groundbreaking work by Douglas Osler, who has been critical of the traditional narratives, this volume interrogates the orthodox views regarding legal humanism and its legacy. Fundamentally reassessing the nature and impact of legal humanism on the narratives of European legal history, this volume brings together the foremost international experts in related fields of legal and intellectual history to debate the central issues.
Moral Rights and Their Grounds offers a novel theory of rights based on two distinct views. The first-the value view of rights-argues that for a person to have a right is to be valuable in a certain way, or to have a value property. This special type of value is in turn identified by the reasons that others have for treating the right holder in certain ways, and that correlate with the value in question. David Alm then argues that the familiar agency view of rights should be replaced with a different version according to which persons' rights, and thus at least in part their value, are based on their actions rather than their mere agency. This view, which Alm calls exercise-based rights, retains some of the most valuable features of the agency view while also defending it against common objections concerning right loss. This book presents a unique conception of exercise-based rights that will be of keen interest to ethicists, legal philosophers, and political philosophers interested in rights theory.
This book adds impetus to the nexus between human rights, human rights education and material reality. The dissonance between these aspects is of growing concern for most human rights educators in various social contexts. The first part of the book opens up new discourses and presents new ontologies and epistemologies from scholars in human rights, human rights education and human rights literacies to critique and/or justify the understandings of human rights' complex applications. Today's rapidly changing social contexts and new languages attempting to understand ongoing dehumanization and violations, put enormous pressure on higher education, educators, individuals working in social sciences, policy makers and scholars engaged in curricula making.The second part demonstrates how global interactions between citizens from different countries with diverse understandings of human rights (from developed and developing democracies) question the link between human rights and it's in(ex)clusive Western philosophies. Continuing inhumane actions around the globe reflect the failure of human rights law and human rights education in schools, higher education and society at large. The book shows that human rights education is no longer a blueprint for understanding human rights and its universal or contextual values presented for multicomplexial societies. The final chapters argue for new ontologies and epistemologies of human rights, human rights education and human rights literacies to open-up difficult conversations and to give space to dissonant and disruptive discourses. The many opportunities for human rights education and literacies lies in these conversations.
The rule of law is sometimes expressed as 'no person is above the law'. A more comprehensive description of the concept has been elusive for generations of scholars, lawyers and judges. What does the phrase mean? More specifically, what does the rule of law mean in the context of 21st century issues and challenges? Professor Robert A Stein and Justice Richard J Goldstone are the distinguished editors and authors of The Rule of Law in the 21st Century. Joining Stein and Goldstone is an array of internationally distinguished leaders of the legal profession (including US Supreme Court Justice Ruth Bader Ginsburg and Paul Volcker, former Chairman of the Federal Reserve) from North America, Europe, Africa and Asia to explore the meaning of the rule of law today in a variety of circumstances. The book opens with chapters covering the basic concepts of the rule of law, independence of the judiciary and whether there is such a concept as an international rule of law. The book examines the concept of the rule of law from a variety of perspectives. Does the rule of law promote or impede economic development? How can we meet the major threat to the rule of law in the form of corruption? What is the relationship between the Great Charter, Magna Carta and the rule of law today? How can the rule of law be of assistance when addressing the challenge of inequality of women in society? It also includes chapters describing law reform programmes that have strengthened the rule of law around the world in recent decades. The rule of law is humankind's best hope for freedom and justice. The Rule of Law in the 21st Century gives a better understanding of this important concept in the world today.
Pursuing Justice, Third Edition, examines the issue of justice by considering the origins of the idea, formal systems of justice, current global issues of justice, and ways in which justice might be achieved by individuals, organizations, and the global community. Part I demonstrates how the idea of justice has emerged over time, starting with religion and philosophy, and then to the concept of social justice. Part II outlines the very different mechanisms used by various nations for achieving state justice, including systems based on common law, civil law, and Islamic law, with a separate discussion of the US justice system. Part III focuses on six contemporary issues of justice: war, immigration, domestic terrorism, genocide, slavery, and the environment. Finally, Part IV shows how individuals and organizations can go about pursuing justice, and describes the rise of global justice. This updated timely book helps students understand the complexities and nuances of a society's pursuit of justice. It provides students with the foundations of global justice systems, integrating Greek philosophies and major religious perspectives into a justice perspective, and contributes to undergraduate understanding of international justice bodies, NGOs, and institutions. New to the third edition is a complete chapter on immigration, with a focus on historical and global patterns as they relate to justice, as well as new material on the #MeToo and Black Lives Matter movements, the genocide of the Rohingya of Myanmar, and the sovereign citizens movement in relation to domestic terrorism.
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