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This book examines the role and importance of reason and emotion in justice and the law. Eight lawyers and philosophers of law consider law's basis in the universal human need for society, our innate sense of justice, and many other powerful inclinations and emotions, including the desire for fairness and even for law itself. Human beings are deeply social creatures, inspired by social and other emotions, which can ennoble, support, or undermine the law. Law gains legitimacy and effectiveness when reason recognizes and embraces human emotions for the benefit of society as a whole. This volume explores the power and purposes of reason and emotion in the law.
This insightful single-volume compilation brings together the most important contemporary work by experts in the economic analysis of legal reasoning and interpretation. The collection explores a wide range of topics in the field, from constitutional to statutory interpretation, precedent and the interpretation of contracts. The articles raise key questions concerning the optimal construction of institutions, the best approach to judicial decision-making, and the best strategies for statutory and contract drafting. Prefaced by an original introduction by the editor, this collection will be valuable to academics interested in legal reasoning, economic analysis and legal philosophy.
Crime is a source of endless fascination and fear. Yet behind the apparent consensus that crime must be fought, there is considerable conflict about what should or should not be treated as criminal, and even the most shocking crimes can inspire divisive debate. This concise book explores the seemingly simple, common-sense concept of crime revealing the huge complexities, ambiguities and tensions that lie beneath it. Criminal law is often at odds with different moral perspectives and the practices of different cultures. The mass media distort the picture profoundly, as do politicians in pursuit of law and order votes. The criminal justice system tackles only a limited range of crimes almost entirely ones committed by the poor and relatively powerless while often neglecting the most dangerous and harmful activities of corporations and states, from the carnage of unjust wars to the tragedies engendered by austerity. It is only by examining the multiple and varied perspectives on crime that we can begin to understand and respond appropriately to this social phenomenon. Written by a world-leading criminologist, this insightful book will be an invaluable and captivating introduction for students and interested readers of criminology, law, sociology and politics.
This timely volume explores the ways in which indigenous peoples across the world are challenged by climate change impacts, and discusses the legal resources available to confront those challenges. Indigenous peoples occupy a unique niche within the climate justice movement, as many indigenous communities live subsistence lifestyles that are severely disrupted by the effects of climate change. Additionally, in many parts of the world, domestic law is applied differently to indigenous peoples than it is to their non-indigenous peers, further complicating the quest for legal remedies. The contributors to this book bring a range of expert legal perspectives to this complex discussion, offering both a comprehensive explanation of climate change-related problems faced by indigenous communities and a breakdown of various real world attempts to devise workable legal solutions. Regions covered include North and South America (Brazil, Canada, the US and the Arctic), the Pacific Islands (Fiji, Tuvalu and the Federated States of Micronesia), Australia and New Zealand, Asia (China and Nepal) and Africa (Kenya). This comprehensive volume will appeal to professors and students of environmental law, indigenous law and international law, as well as practitioners and policymakers with an interest in indigenous legal issues and environmental justice.
Can private law assume an ecological meaning? Can property and contract defend nature? Is tort law an adequate tool for paying environmental damages to future generations? This book explores potential resolutions to these questions, analyzing the evolution of legal thinking in relation to the topics of legal personality, property, contract and tort. In this forward-thinking book, Mattei and Quarta suggest a list of basic principles upon which a new, ecological legal system could be based. Taking private law to represent an ally in the defence of our future, they offer a clear characterization of the fundamental legal institutions of common law and civil law, considering the challenges of the Anthropogenic era, technological tools of the Internet era, and the global rise of the commons. Summarizing the fundamental institutions of private law: property rights, legal personality, contract, and tort, the authors reveal the limits of these legal institutions in relation to historical international evolution and their regulation in the contexts of catastrophic ecological issues and technological developments. Engaging and thoughtful, this book will be interesting reading for legal scholars and academics of private law and, in particular, those wishing to understand the role of law when facing technological and ecological challenges.
This timely book explores the complexities of the rule of law - a well-used but perhaps less well understood term - to explain why it is so often appealed to in discussions of global politics. Ranging from capacity building and the role of the World Bank to the discourse(s) of lawyers and jurisprudential critiques, it seeks to introduce non-lawyers to the important and complex political economy of the rule of law. In accessible terms, Christopher May argues that we can no longer merely use the idea of the rule of law without question but rather must appreciate its multifaceted and contested character if we are to begin to understand how and why it is now seen as a 'good thing' across the political spectrum. He expertly examines the problems encountered by rule of law programmes in post-conflict and developing countries, as well as presenting the range of contested meanings of the term. The author also considers the possibility of establishing a pluralistic account of the rule of law and investigates the plausibility of an international rule of law. By building on and extending debates in socio-legal studies about the social role of law, and dealing with issues largely absent from international political economy this book will be of great interest to socio - legal scholars and political economists. It also presents an overarching analysis of the manner in which politics and law interact that will be of great value to political scientists and development economists.
The enterprise of comparative law is familiar, yet its conceptual whereabouts remain somewhat obscure. Comparing Law: Comparative Law as Reconstruction of Collective Commitments reconstructs comparative law scholarship into a systematic account of comparative law as an autonomous academic discipline. The point of that discipline is neither to harmonize world law, nor to emphasize its cultural diversity, but rather to understand each legal system on its own terms. As the proposed reconstruction exercise involves bridging comparative law and contemporary legal theory, it shows how comparative law and legal theory both stand to benefit from being exposed to each other. At a time when many courses are adding a transnational perspective, Valcke offers a more theoretical, broadened, and refreshed view of comparative law.
Interest in victims of crime - victimology - has always spanned both the scholarly and practical realms. This volume combines a collection of essays covering the diversity of approaches towards victimology, from the conceptual to the practical, including evaluation and scrutiny of the basis on which we do justice. The volume is divided into four sections; the first part discusses the nature of victimisation and concepts of the nature of victimhood; the second part looks at the effects of victimisation and some of the ways in which victim support and assistance have developed, and the views of victims on these. The third part considers the role that victims play in criminal justice and their reactions to those roles. Finally, the book looks at responses to victimisation - including attempts to provide acknowledgement, reparation and compensation - within the framework of criminal justice. Much of the research literature on victimology has previously stemmed from Europe and North America, and has been influenced by an Anglo-American common law legal system and views of criminal justice whereas this collection incorporates different legal systems' perspectives, particularly those of mainland Europe. This book will serve as an important predicate to wider research in victimology and further development of this dynamic field.
The legitimacy and performance of the traditional criminal justice system is the subject of intense scrutiny as the world economic crisis continues to put pressure on governments to cut the costs of the criminal justice system. This volume brings together the leading work on restorative justice to achieve two objectives: to construct a comprehensive and up-to-date conceptual framework for restorative justice suitable even for newcomers; and to challenge the barriers of restorative justice in the hope of taking its theory and practice a step further. The selected articles start by answering some fundamental questions about restorative justice regarding its historical and philosophical origins, and challenge the concept by bringing into the debate the human rights and equality discourses. Also included is material based on empirical testing of restorative justice claims especially those impacting on reoffending rates, victim satisfaction and reintegration. The volume concludes with a critique of restorative justice as well as with analytical thinking that aims to push its barriers. It is hoped that the investigations offered by this volume not only offer hope for a better system for abolitionists and reformists, but also new and convincing evidence to persuade the sceptics in the debate over restorative justice.
A central theme of law and society is that people's ideas about law and the decisions they make to mobilize law are shaped by community norms and cultural context. But this was not always an established concept. Among the first empirical pieces to articulate this theory was David Engel's 1984 article, 'The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community'. Over thirty years later, this article is now widely considered to be part of the law and society canon. This book argues that Engel's article succeeds so brilliantly because it integrates a wide variety of issues, such as cultural transformation, attitudes about law, dispute processing, legal consciousness, rights mobilization, inclusion and exclusion, and inequality. Contributors to this volume explore the influence of Engel's important work, engaging with the possibilities in its challenging hypotheses and provocative omissions related to the legal system and legal process, class conflict and difference, and law in other cultures.
The Research Handbook on Intellectual Property Licensing explores the complexities of intellectual property licensing law from a comparative perspective through the opinions of leading experts. This major research tool analyses the features of specific types of licensing agreements and also addresses other practical issues which apply across different types of licensing transactions, such as the treatment of licensing in bankruptcy and the use of arbitration for solving licensing disputes. The Handbook ultimately provides a scholarly contribution to the development of global intellectual property licensing policies. Including transversal and comparative analysis, this Handbook will appeal to intellectual property licensing practitioners, lawyers and intellectual property and contract law academics.
Cyberspace is a difficult area for lawyers and lawmakers. With no physical constraining borders, the question of who is the legitimate lawmaker for cyberspace is complex. Rethinking the Jurisprudence of Cyberspace examines how laws can gain legitimacy in cyberspace and identifies the limits of the law's authority in this space. Two key questions are central to the book: Who has authority to make laws within cyberspace and how do laws in cyberspace achieve legitimacy? Chris Reed and Andrew Murray answer these questions by examining the jurisprudential principles that explain law in the physical world and rethinking them for the cyberworld. In doing so they establish that cyberlaw is more similar to traditional law than previously thought, but that establishing legitimate authority is quite different. This book provides the first thorough examination of the jurisprudence of cyberspace law, asking why any law should be obeyed and how the rule of law is to be maintained there. Academics and researchers who are interested in the regulation of cyberspace will find this to be a compelling study. More broadly, it will appeal to those researching in the fields of transnational legal studies, jurisprudence and legal thought.
The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This is the first book by a constitutional theorist to address the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly. The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making. With the referendum firmly established as a fixture of contemporary constitutionalism, the book addresses the key question for constitutional theorists and practitioners of how might its operation be made more democratic in age of constitutional transformation.
This book applies a novel conflict-based approach to the notions of 'idea', 'concept', 'invention' and 'immateriality' in the legal regime of intellectual property rights by turning to the adversarial legal practices in which they occur. In doing so, it provides extensive ethnographies of the courts and law firms, and tackles classical questions in legal doctrine about the immaterial nature of intellectual property rights from a thoroughly new perspective. The book follows the legal proceedings of disputes in patent, copyright and trademark law as they circulate from the sites of enterprises, through the offices of law firms, the court registry, the courtroom and the judge's office, until they finally arrive at judgment. In this way, the central matters of a dispute are gradually transformed into immaterial works, inventions, or signs through the ceaseless 'material' operations of legal practices. This analysis sheds light on how seemingly abstract philosophical notions are rendered workable as concrete legal concepts with important consequences. Grounds of the Immaterial offers an inventive and refreshing take on intellectual property rights which will be valued by academics and students in philosophy, legal theory, legal anthropology and intellectual property.
The second edition of Aquinas, On Law, Morality, and Politics retains the selection of texts presented in the first edition but offers them in new translations by Richard J. Regan--including that of his Aquinas, Treatise on Law (Hackett, 2000). A revised Introduction and glossary, an updated select bibliography, and the inclusion of summarizing headnotes for each of the units--Conscience, Law, Justice, Property, War and Killing, Obedience and Rebellion, and Practical Wisdom and Statecraft-further enhance its usefulness.
Privacy is gravely endangered in the digital age, and we, the digital citizens, are its principal threat, willingly surrendering it to avail ourselves of new technology, and granting the government and corporations immense power over us. In this highly original work, Firmin DeBrabander begins with this premise and asks how we can ensure and protect our freedom in the absence of privacy. Can-and should-we rally anew to support this institution? Is privacy so important to political liberty after all? DeBrabander makes the case that privacy is a poor foundation for democracy, that it is a relatively new value that has been rarely enjoyed throughout history-but constantly persecuted-and politically and philosophically suspect. The vitality of the public realm, he argues, is far more significant to the health of our democracy, but is equally endangered-and often overlooked-in the digital age.
Since the proclamation of the Universal Declaration of Human Rights, over 165 countries have incorporated human rights standards into their legal systems: the resulting jurisprudence from diverse cultural traditions creates new dimensions to concepts first articulated in 1948. In this revised second edition, Nihal Jayawickrama draws on extensive sources to encapsulate the judicial interpretation of human rights law in one comprehensive volume. Jayawickrama covers the case law of the superior courts of 103 countries in America, Europe, Africa, Asia, the Caribbean and the Pacific, as well as jurisprudence of human rights monitoring bodies. He analyses the judicial application of human rights law to demonstrate empirically the universality of contemporary human rights norms. This definitive volume is essential for legal practitioners, and government and non-governmental officials, as well as academics and students of both constitutional law and the international law of human rights.
The nature and purpose of legal education has become a topic of intense debate in recent years. This timely book calls for a critical re-evaluation of university legal education, with the particular aim of strengthening its academic nature. The contributors emphasize lecturers' responsibility to challenge the assumptions students have about law, and the importance of putting law in a theoretical and social context that allows for critical reflection and sceptical detachment. In addition, the book reports upon teaching experiences and innovations, offering tools for teachers to strengthen the academic nature of legal education, and concludes with concrete proposals for change. Students and scholars engaged in the debate regarding the re-evaluation of academic legal education will find this book invaluable to their work. It will also be of interest to practitioners, such as educational experts and administrators looking to understand the role of law schools in creating responsible citizens.
Criminal Justice Policy is an authoritative collection of previously published writings addressing the most important issues which have dominated the field during the past fifteen years. Topics covered include: international perspectives on the extent and nature of crime; theoretical explanations for the onset, escalation and termination of criminal behaviour; the social context of crime; evaluating alternative crime policy options; crime control policy and the future. Criminal Justice Policy should be required reading for community leaders, for policymakers at all levels of government and for members of the general public actively interested in creating more effective crime policies.
In the context of our increasingly global legal order, Pierre Legendre's God in the Mirror reconsiders the place of law within the division of existing bodies of knowledge. Navigating the texts of Ovid, Augustine, Roman jurists, medieval canon lawyers, Freud, Lacan, the notebooks of Leonardo de Vinci, and the paintings of Magritte, this third volume of Pierre Legendre's Lessons focuses on the relation of the subject to the institution of images. Legendre tracks the origins and vicissitudes of the specular metaphor within western history, carrying out a critique of its dependence on the discourse of the Imago Dei. A crucial landmark within Legendre's ongoing reconsideration of a medieval 'revolution of interpretation', this book dissociates the western normative tradition from its mythic foundation, separating theology and law. It thereby documents the advent of modern rational doubt, as a new legal foundation or ground: one that, for Legendre, was not only a revolutionary invention, but one that produced the modern European idea of the State.
This is a study of what constituted legality and the role of law in ancient societies. Investigating and comparing legal codes and legal thinking of the ancient societies of Mesopotamia, Egypt, Greece, India, the Roman Republic, the Roman Empire and of the ancient Rabbis, this volume examines how people used law to create stable societies. Starting with Hammurabi's Code, this volume also analyzes the law of the pharaohs and the codes of the ancient rabbis and of the Roman Emperor Justinian. Focusing on the key concepts of justice equity and humaneness, the status of women and slaves, and the idea of criminality and of war and peace; no other book attempts to examine such diverse legal systems and legal thinking from the ancient world.
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