In the Shade of an African Baobab: Tom Bennett's Legacy is a collection of essays published to honour and thank Tom Bennett for his generous contribution to scholarly work over the years in the field of legal pluralism and African jurisprudence, as well as for his mentorship and friendship. The book brings together a collection of work by esteemed scholars from multidisciplinary fields, though the work is focused on aspects of law, culture and religion. The common thread through all the contributions is Tom. His scholarly influence, visible in each of the contributions, can be compared to the mighty Baobab tree: a large iconic, culturally important and majestic tree indigenous to Africa.

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

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

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

Ours is an age of growing doubt about constitutional theory and of outright hostility to any theory that defends judicial review. Why should a tiny number of unelected judges be able to validate or invalidate laws on such politically controversial issues as abortion, religion, gender, and sex-or even determine how the president is elected? In this provocative book, a leading constitutional theorist offers an entirely original defense of judicial review. Louis Michael Seidman argues that judicial review is defensible if we set aside common but erroneous assumptions-that constitutional law should be independent from our political commitments and that the role of constitutional law is to settle political disagreement. Seidman develops a theory of "unsettlement." A constitution that unsettles, that destabilizes outcomes produced by the political process, creates no permanent losers nursing deep-seated grievances, he says. An "unsettling" constitution helps to build a community founded on consent by enticing losers into a continuing conversation. The author applies this theory to an array of well-known cases heard by the Supreme Court over the past several decades, including the fall 2000 election decision.

Nicola Lacey's book presents a feminist critique of law based on an analysis of the ways in which the very structure or method of modern law is gendered. All of the essays in the book therefore engage at some level with the question of whether there are things of a general nature to be said about what might be called the sex or gender of law. Ranging across fields including criminal law,public law and anti-discrimination law, the essays examine the conceptual framework of modern legal practices: the legal conception of the subject as an individual; the concepts of equality, freedom, justice and rights; and the legal construction of public and private realms and of the relations between individual, state and community. They also reflect upon the deployment of law as a means of furthering feminist ethical and political values. At a more general level, the essays contemplate the relationship between feminist and other critical approaches to legal theory; the relationship between the ideas underlying feminist legal theory and those informing contemporary developments in social and political theory; and the nature of the relationship between feminist legal theories and feminist legal politics. The essays in this book tell the story of an intellectual journey which has led the author to question some of the central assumptions of traditional legal education and scholarship. They also set out a distinctive vision of jurisprudence as a form of critical social theory.

In this book, James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and how it would be a solution for the American legal system as well.

"Stewards of Democracy" is a celebration of a moral tradition famously observed by Alexis de Tocqueville through the eyes of Francis Lieber, a Prussian emigre who in antebellum times wrote of political ethics, hermeneutics, and comparative constitutional law as aspects of the moral duties of American lawyers and judges. The duty of the profession unifying this tradition has been to nurture and protect the institutions of self-government on which depend the stability of our complex social order and the protection of all our legal rights. Thomas Cooley, perhaps the lawyer most respected by nineteenth century Americans, is presented as a primary exemplar of the dutiful tradition. Much of the book is an account of his career as judge, scholar, teacher, and founding chair of the Interstate Commerce Commission. Cooley's career was succeeded in the tradition by a trio of Progressives: Louis Brandeis, Ernst Freund, and Learned Hand, whose careers area also examined. Finally noted is the more recent career of Byron White.Carrington contends that the dutiful tradition marked by the careers of the five exemplars is threatened by the mutually reinforcing tendencies of the Supreme Court and other high courts, of highly respected legal scholars, of the most honored of our law schools, and of noted legal journalists, all of whom tend to work from the premise that political and moral judgments can best be made by an elite and imposed on a passive citizenry, a belief tending to fulfill itself. The result is a threatened suffocation of the political institutions commanding the loyalty and enduring support of citizens. The book concludes by suggesting possible causes for a future reversal of this long-term trend and the steps such a reversal might entail.

This work explains the nature of constitutional rights. It does so by means of an analysis of the nature of law in general, the nature of constitutions, and the nature of rights. It looks in detail at several aspects of constitutional law, rights and institutions, as well as aspects related to public officials, private persons and associations. In addition, the book critically examines a considerable number of debates about whether some actual or proposed constitutional rights ought to be established and maintained in the United States constitution. It then identifies the kinds of reasons that justify or fail to justify constitutional rights. The book advances the debate and makes a contribution to the theory and the practice of constitutional rights.

This book discusses the legal thought of Bronislaw Malinowski (1884-1942), undoubtedly one of the titans of social sciences who greatly influenced not only the shape of modern cultural anthropology but also the social sciences as a whole. This is the first comprehensive work to focus on his legal conceptions: while much has been written about his views on language, magic, religion, and culture, his views on law have not been fairly reconstructed or recapitulated. A glance at the existing literature illustrates how little has been written about Malinowski's understanding of law, especially in the legal sciences. This becomes even more evident given the fact that Malinowski devoted much of his scholarly work to studying law, especially in the last period of his life, during which he conducted broad research on law and "primitive jurisprudence". The main aim of this book is to address this gap and to present in detail Malinowski's thoughts on law. The book is divided into two parts. Part I focuses largely on the impact that works of two distinguished professors from his alma mater (L. Dargun and S. Estreicher) had on Malinowski's legal thoughts, while Part II reconstructs Malinowski's inclusive, broad and multidimensional understanding of law and provides new readings of his legal conceptions mainly from the perspective of reciprocity. The book offers a fresh look at his views on law, paving the way for further studies on legal issues inspired by his methodological and theoretical achievements. Malinowski's understanding of law provides a wealth of fodder from which to formulate interesting research questions and a solid foundation for developing theories that more accurately describe and explain how law functions, based on new findings in the social and natural sciences.

This is the English version of Jerzy Wroblewski's major work in Polish, S dowe Stosowania Prawa (translated in his own preferred terms as 'The Judicial Application of Law'). The present translation arose out of a visit by the author to Scotland in 1989. In that year, the Carnegie Trust for the Universities of Scotland made it possible for Jerzy Wroblewski to spend six months as a Carnegie Fellow in the Centre for Criminology and the Social and Philosophical Study of Law at the University of Edinburgh. During that time he took a notably active part in the intellectual life of the Centre and the Faculty of Law. He gave freely of his time in teaching and advising students and also produced a series of original articles on topics connected with legal reasoning and law and computers. His major task while he was here, however, was to prepare a translation of S dowe Stosowania Prawa, and this he accomplished to the extent of completing a preliminary draft. Zenon Bankowski and Neil MacCormick were to help him in improving this linguistically and preparing the final text for publication. Wroblewski warned us, having finished his draft with great labour, that the greater labour would be in the polishing of it. For we would have, as he joked, 'to translate my English into English'. And certainly, we found it extremely time-consuming, so as to defy completion during his stay in Edinburgh.

Looking at two of the key paradigms of the post-Cold War era–national sovereignty, and human rights – this book examines the possibilities for their reconciliation from a global perspective. The real or imagined fear of a flood of immigrants has caused and fuelled the surge of an amalgam of populist political forces, anti-immigrant movements, and exclusionist nationalism in many developed countries. In the last decade, we have witnessed the emergence of two phenomena in the political and legal spheres. On the one hand, there are liberal globalists asking for respect and the protection of the basic human rights of migrants and asylum seekers and arguing for their civic and social integration into host societies. On the other hand, there are growing calls for a tougher stance on immigration, and powerful populist politicians and governments have emerged in many developed countries. How can the idea of universal human rights survive exclusionist nationalism that uses a populist, unscrupulous approach to its advantage? The contributors to this book explore the meaning of, and possible solutions to, this dilemma using a wide range of approaches and seek appropriate ways of dealing with these normative predicaments shared by many developed societies. Scholars and students of human rights, migration, nationalism and multiculturalism will find this a very valuable resource.

Americans seem increasingly disenchanted with their legal system. In the wake of several high-profile trials, America's faith in legal authority appears profoundly shaken.

And yet, as David Ray Papke shows in this dramatic and erudite tour of American history, many Americans have challenged and often rejected the rule of law since the earliest days of the country's founding. Papke traces the lineage of such legal heretics from nineteenth-century activists William Lloyd Garrison and Elizabeth Cady Stanton, through Eugene Debs, and up to more recent radicals, such as the Black Panther Party, anti-abortionists, and militia members. A tradition of American legal heresy clearly emerges--linked together by a body of shared references, idols, and commitments--that problematizes the American belief in legal neutrality and highlights the historical conflicts between law and justice. Questioning the legal faith both peculiar and essential to American mythology, this alternative tradition is in itself an overlooked feature of American history and culture.

This book offers a systematic and comprehensive account of the key cases that have come to shape the jurisprudence on emergency law in the United States from the Civil War to the War on Terror. The legal questions raised in these cases concern fundamental constitutional issues such as the status of fundamental rights, the role of the court in times of war, and the question of how to interpret constitutional limitations to executive power. At stake in these difficult legal questions is the issue of how to conceive of the very status of law in liberal democratic states. The questions with which the Supreme Court justices have to grapple in these cases are therefore as philosophical as they are legal. In this book the Court's arguments are systematized according to categories informed by constitutional law as well as classic philosophical discussions of the problem of emergency. On this basis, the book singles out three legal paradigms for interpreting the problem of emergency: the rights model, the extra-legal model and the procedural model. This systematic approach helps the reader develop a philosophical and legal overview of central issues in the jurisprudence on emergency.

Reason, Democracy, Society deals with basic points of legal theory and philosophy of law. The main contention of the book relates to the insufficiencies of the legal positivistic approach. Some of its claims are that we must sharply separate what the law is from, what the law ought to be, and that we can know what the law is without appealing to meta-legal considerations. These and other claims are criticized. The author shows that with the legal positivistic approach we cannot know, in all cases, what the law is, if that is equated to the rules posited by the legislator. He also challenges H.L.A. Hart's and MacCormick's points of view, amongst others, about the characteristic corner stones of legal positivism. Some other issues relate to human rights, legal rationality and efficiency and ethics. This book will be of interest to philosophers concerned with law or ethics, those concerned with justice in modern society and to jurists and law students.

Volume 37 of "Studies in Law, Politics, and Society" presents a special issue devoted to exploring humanistic perspectives on the subject of punishment. Drawing together a distinguished group of interdisciplinary scholars, it explores the way "deviant" subjects are constructed and made available for punishment, the philosophical context within which decisions about punishment are made, and the inner workings of the penal apparatus. Diverse in their theoretical inspirations and approaches, the articles published here represent a significant advance in our understanding of the complex intersections of punishment, politics, and culture.

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

This volume 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 the many ways citizens learn about law, law beyond the nation-state and the relationship of law and labour.

This volume explores new interfaces between linguistics and jurisprudence. Its theoretical and methodological importance lies in showing that many questions asked within the field of language and law receive satisfactory answers from formal linguistics. The book starts with a paper by the two editors in which they explain why the volume - as a whole and with its individual papers - is an innovation in the field of language and law. In addition, an overview about the most important research projects on language and law is given. The first chapter of the book is on understanding the law. Jurists and laypersons always ask for the precise meaning of a certain piece of the law. In linguistics, the discipline investigating 'meaning' is semantics; thus, it is to be expected that semantics can contribute to a correct understanding of the law. Chapter 1 also investigates the alleged incomprehensibility of legal language with the help of psycholinguistics. Chapter 2 is on identifying the criminal. To find the author of a blackmailer's letter, text/ corpus linguistics is instrumental. If the blackmailer uses the telephone instead of the letter, speaker identification and phonetics are necessary. The BKA stores all blackmailing letters in a database, but databases are only one possibility of organizing legal systems; another possibility is the application of tools from computational linguistics and artificial intelligence. These tools can be useful to handle terminology, to retrieve information, or to model legal theorizing in a formal system. Chapter 3 demonstrates a variety of examples of organizing legal systems. The topic of chapter 4 is multilingualism and the law. The European legislation is a product of legal and linguistic diversity, as the member states do not only differ in languages but also in their legal systems. One paper shows how Switzerland handles its multilingualism in legal drafting. The input of translation studies is of course vital in this field of research. An index for both subjects and persons complements the volume.

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. First published in 2009, The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Gr goire C. N. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level.

Voluntariness is a necessary condition of valid consent. But determining whether a person consented voluntarily can be difficult, especially when people are subjected to coercion or manipulation, placed in a situation with no acceptable alternative other than to consent to something, or find themselves in an abusive relationship.

The present study which I have subtitled A Study in Law and Logic was prompted by the question of whether an investigation into law and legal systems could lead to the discovery of unrevealed fundamental patterns common to all such systems. This question was further stimulated by two interrelated problems. Firstly, could an inquiry be rooted in specifically legal matters, as distinct from the more usual writings on deontic logic? Secondly, could such inquiry yield a theory which would nevertheless embrace a strict and simple logical structure, permitting substantive conclusions in legal matters to be deduced from simple rules governing some basic concepts? Before the development of deontic logic, W. N. Hohfeld devoted his efforts to this question at the beginning of this century. However, with this exception, few jurists have studied the interrelation between law and logic projected in this way. Nevertheless, two great names are to be found, Gottfried Wilhelm Leibniz and Jeremy Bentham-both philo sophers with legal as weIl as logical training. Bentham's investigations of logical patterns in law have only recently attracted attention; and as for Leibniz, his achievements are still almost totally unexplored (his most important writings on law and logic have not even been translated from Latin). My initial interest in the question was evoked by Professor Stig Kanger. Although primarily a logician and philosopher, Stig Kanger has been interested also in the fundamentals of legal theory."

Most of the papers in this collection are contributions to action theory intended to be of some relevance to one or another concern of decision theory, particularly to its application to concrete human behavior. Some of the papers touch only indirectly on problems of interest to decision theorists, but taken together they should be of use to both decision theorists and philosophers of action. Robert Audi's paper indicates how a number of questions in action theory might bear on problems in decision theory, and it suggests how some action-theoretic results may help in the construction or interpretation of theories of decision, both normative and empirical. Carl Ginet's essay lays foundations for the conception of action. His volitional framework roots actions internally and conceives them as irreducibly connected with intentionality. Hugh McCann's essay is also foundational, but stresses intention more than volition and lays some of the groundwork for assessing the rationality of intention and intentional action. In William Alston's paper, the notion of a plan as underlying (intentional) action is central, and we are given both a con ception of the structure of intentional action and a set of implicit goals and beliefs - those whose content is represented in the plan - which form an indispensable part of the basis on which the rationality of the action is to be judged."