Fifty years before his death in 2013, Nelson Mandela stood before Justice de Wet in Pretoria's Palace of Justice and delivered one of the most spectacular and liberating statements ever made from a dock. In what came to be regarded as "the trial that changed South Africa", Mandela summed up the spirit of the liberation struggle and the moral basis for the post-Apartheid society. In this blistering critique of Apartheid and its perversion of justice, Mandela transforms the law into a sword and shield. He invokes it while undermining it, uses it while subverting it, and claims it while defeating it. Wise and strategic, Mandela skilfully reimagines the courtroom as a site of visibility and hearing, opening up a political space within the legal. This volume returns to the Rivonia courtroom to engage with Mandela's masterful performance of resistance and the dramatic core of that transformative event. Cutting across a wide-range of critical theories and discourses, contributors reflect on the personal, spatial, temporal, performative, and literary dimensions of that constitutive event. By redefining the spaces, institutions and discourses of law, contributors present a fresh perspective that re-sets the margins of what can be thought and said in the courtroom.

'I swear to tell the truth, the whole truth, and nothing but the truth' we say in a court of law. 'In a court of law, the truth is precisely what we will not say', says Lacan. 'If God is dead, everything is permitted', writes Dostoyevsky. 'If God is dead, everything is prohibited', responds Lacan. 'I think, therefore I am', reasons Descartes. 'I am where I do not think', concludes Lacan. What are we to make of Lacan's inversions of these mottos? And what are the implications for the legal system if we take them seriously? This book puts the legal subject on the couch and explores the incestuous relationship between law and desire, enjoyment and transgression, freedom and subjection, ethics and atheism. The process of analysis problematizes fundamental tenets of the legal system, leading the patient to rethink long-held beliefs: terms like 'guilt' and 'innocence', 'truth' and 'lies', 'reason' and 'reality', 'freedom' and 'responsibility', 'cause' and 'punishment', acquire new and surprising meanings. By the end of these sessions, the patient is left wondering, along with Freud her analyst, whether 'it is not psychology that deserves the mockery but the procedure of judicial enquiry'. A unique study on the nexus of Law and Psychoanalysis, this book will interest students and scholars of both subjects, as well as general readers looking to explore this perverse and fascinating relationship.

In early modern Europe the law developed as one of the few non-religious orderings of civil life. Its separation from religion was, however, never complete and we see the contest continued today not only in the campaigns of religious fundamentalists of the right, but also in the clains of critical intellectuals to reshape government institutions and the legal apparatus in accordance with moral principle - whether of indivudual autonomy or communitarian self-determination. In Anti-Lawyers, David Saunders traces the story of this unresolved conflict from Hobbes' Leviathan to the American law texts of today, and discusses how we might regard today's moral critics of government and law in the light of the early modern effort to disengage spiritual discipline from secular government and conscience from law. Separate sections look at major figures in English common law in the Early Modern period, French and German absolutism and jurisprudence as it is taught in the American law texts of today.

The meaning of an expression resides not in the expression itself but in the experience of a person's engagement with it. Meaning will be different not only to different people but also to the same person at different times. This book offers a way of attending to these different meanings. This way (or method) is a version of a trans-cultural activity that Richard Dawson calls attunement. The activity of attunement involves a movement of self-adjustment to a language, which a person transforms in her or his use of it. Consciously performing the activity can enable understanding of the processes by which we constitute ourselves and others when we use a language. This directly connects to the topic justice, which is concerned with constituting appropriate selves and relations. Justice as Attunement engages with a wide range of texts - legal, literary, economic, philosophical, among others - and illuminates many useful and fascinating connections between them. There is a sense in which this book transcends disciplinary boundaries, for, in addition to students and scholars of law, literature, economics, and philosophy, it is written to a general reader who is interested in reflecting on and doing justice to their experiences in life.

This book identifies and follows a strand in the history of thought ranging from codified statutes to looser social expectations that uses particulars, and more specifically examples, to produce norms. Much intellectual history takes ancient Greece as a point of departure. But the strand of thought followed here finds its home, if not its origin, in Rome. The practice of exemplarity is historically rooted firmly in ancient Roman rhetoric, oratory, literature, and law, genres that also secured its transmission. Their pragmatic approach results in a conceptualization of politics, social organization, philosophy, and the law that is derived from the concrete. And although it is commonly supposed that, with the shift from pre-modern to modern ways of thinking as modern knowledge came to privilege abstraction over exempla, the general over the particular exemplarity lost its way, this book traces the limits of this understanding. Tracing the role of exemplarity from Rome through to its influence on literature, politics, philosophy, psychoanalysis and law, it shows how Roman exemplarity has subsisted, not only as a figure of thought, but also as an alternative way to organize and to transmit knowledge. "

This volume presents a new approach to today's tax controversies, reflecting that debates about taxation often turn on the differing worldviews of the debate participants. For instance, a central tension in academic tax literature - which is filtering into everyday discussions of tax law - exists between 'mainstream' and 'critical' tax theorists. This tension results from a clash of perspectives: Is taxation primarily a matter of social science or of social justice? Should tax policy debates be grounded in economics or in critical race, feminist, queer, and other outsider perspectives? To capture and interrogate what often seems like a chasm between the different sides of tax debates, this collection comprises a series of pairs of essays. Each pair approaches a single area of controversy from two different perspectives - with one essay usually taking a 'mainstream' perspective and the other a 'critical' perspective. In writing their contributions, the authors read and incorporated reactions to each other's essays and paid specific attention to the influence of perspective on both the area of controversy and their contribution to the debate. With contributions from leading mainstream and critical tax scholars, this volume takes the first step toward bridging the gap between these differing perspectives on tax law and policy.

Against jurisprudential reductions of Spinoza's thinking to a kind of eccentric version of Hobbes, this book argues that Spinoza's theory of natural right contains an important idea of absolute freedom, which would be inconceivable within Hobbes' own schema. Spinoza famously thought that the universe and all of the beings and events within it are fully determined by their causes. This has led jurisprudential commentators to believe that Spinoza has no room for natural right - in the sense that whatever happens by definition has a 'right' to happen. But, although this book demonstrates how Spinoza constructs a system in which right is understood as the work of machines, by fixing right as determinate and invariable, Stephen Connolly argues that Spinoza is not limiting his theory. The universe as a whole is capable of acting only in determinate ways but, he argues, for Spinoza these exist within a field of infinite possibilities. In an analysis that offers much to ongoing attempts to conceive of justice post-foundationally, the argument of this book is that Spinoza opens up right to a future of determinate interventions -as when an engineer, working with already-existing materials, improves a machine. As such, an idea of freedom emerges in Spinoza: as the artful rearrangement of the given into new possibilities. An exciting and original contribution, this book is an invaluable addition, both to the new wave of interest in Spinoza's philosophy, and to contemporary legal and political theory.

What is law? What is the source of law? What is the law for? How does law differ from other norms or codes of conduct? What is the difference between law and morality? Who is obligated to follow the law and why? What is the difference between moral and legal obligation? This book addresses these foundational questions about the law in general, and seeks to reorient our thoughts to the specific nature of law in India, the India of today, and the possible India of the future. This volume: covers relevant foundational elements, concepts and questions of the discipline; brings the uniqueness of Indian Philosophy of Law to the fore; critically analyzes the major theories of jurisprudence; examines legal debates on secularism, rationality, religion, rights and caste politics; and presents useful cases and examples, including free speech, equality and reservation, queer law, rape and security, and the ethics of organ donation. Lucid and accessible, the book will be indispensable to students, teachers and scholars of law, philosophy, politics as well as philosophy of law, sociology of law, legal theory and jurisprudence.

Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features (e.g., liberty, health, autonomy, security, non-subordination, the absence of oppression, human dignity, the discovery of truth, the acquisition of knowledge, self-realization, human excellence, civic dignity, cultural diversity and choice, recognition of cultural identity, intercultural dialogue, participation in democratic self-government, being subject only to legitimate rule) and practical considerations (e.g., efficacy, the least restrictive alternative, chilling effects). The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of the principled arguments. Finally, it argues that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue (e.g., reciprocity, equality, and mutual respect). The Open Access version of this book, available at https://doi.org/10.4324/9781315714899, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Contemporary copyright was born in a heroic era of human history when technologies facilitated idea dissemination through the book trade reaching out mass readership. This book provides insights on the copyright evolution and how proprietary individual expression's copyright protection forms an integral part of our knowing in being, driven by the advances of technology through the proliferating trading frameworks. The book captures what is central in the process of copyright evolution which is an "onto-epistemological offset". It goes on to explain that copyright's protection of knowing in originality's delineation of expression and fair use/dealing's legitimization of unauthorized use and being are not isolatable, but rather mutually implicated. While the classic strict determinism has been subject to an onto-epistemological challenge, the book looks at the proliferation of global trade and advent of information technology and how they show us the beauty and possibility of intra-dependence between copyright authorship, entrepreneurship, and readership, which calls for a fresh copyright onto-epistemology. Building on its onto-epistemological critiques on the stakeholder, force, and mechanism of copyright evolution, the book helps readers understand why, not only copyright, but also law in general, and justice too, need to be onto-epistemologically balanced, as this is categorically imperative for being, the fundamental law of nature.

This book examines the interstices among statutory enactment, constitutional convention and formal constitution in which quasi-constitutionality exists. It provides a focal resource that can serve as a point of reference for scholars interested in quasi-constitutionality as a whole, from national and transnational perspectives, expanding on its many forms, functions, and applications with recourse to comparative insights. The book is divided in three main Parts, each of them preceded by a separate critical introduction in which an informed scholar contextualizes the chapters and offers reflections on the themes they develop. The first Part, titled 'Forms', is composed of chapters that address, from a theoretical and comparative perspective, questions related to the recognition of constitutional statutes and quasi-constitutional legislation. The second Part is titled 'Functions', and contains chapters that explore the explanatory power of quasi-constitutionality in different institutional contexts. The third Part, titled 'Applications', considers the ways in which constitutional statutes and quasi-constitutionality operate in relation to particular tensions and debates present in various jurisdictions.

The orthodox view is that rights complement democracy. This book critically examines this view in the context of EU fundamental rights, specifically in situations where EU law requires member states to respect EU fundamental rights. It first sets out a legal theoretical account of how human rights can complement democracy. It argues that they can do so only if they are understood as both the conditions for the democratic process, and the outcome of such a democratic process. In light of this legal theoretical account of human rights, this book examines the demands which the Court of Justice of the EU (CJEU) imposes on the national orders in respect of EU fundamental rights. The conclusion reached is that the demands which EU fundamental rights impose on national legal orders entail a cost for the democratic legitimacy of those legal orders. Ultimately, accepting the demands of the CJEU in respect of EU fundamental rights may require the national legal order to abandon its commitment to protecting the human rights which are the foundation of the national legal order's very legitimacy.

This book argues that the effective protection of fundamental rights in a contemporary, multicultural society requires not only tolerance and respect for others, but also an ethics of reciprocity and a pursuit of dialogue between different cultures of human rights. Nowadays, all cultures tend to claim an equitable arrangement that can be articulated in the terms of fundamental rights and in the multicultural organization of the State. Starting from the premise that every culture is and always was intercultural, this book elaborates a new, and more fundamentally, pluralist view of the relationship between rights and cultural identity. No culture is pure; from the perspective of an irreducible cultural contamination, this book argues, it is possible to formulate constitutional idea of diversity that is properly intercultural. This concept of intercultural constitutionalism is not, then, based on abstract principles, but nor is it bound to any particular cultural norm. Rather, intercultural constitutionalism allows the interpretation of rights, rules and legal principles, which are established in different contexts.

This title was first published in 2001. Legal systems are posited on the assumption that people are rational intentional agents who can choose to follow or break the law. This book connects the common interests of lawyers and philosophers in the meaning of intention and its relation to responsibility in legal, moral and political contexts.

The central theme of this impressively argued study is that the mental and physical are identical. Drawing heavily on recent scientific research into the mind-brain relationship, Dr Wilson argues that human mentality, rationality and purposefulness are phenomena which come within the compass of scientifically based explanation. The consequences of this thesis are enormous both in relation to the controversies about reasons and causes as explanations of human behaviour, and, more important, to the problems of free will, moral responsibility, penal philosophy, ethics and the law. The book argues that free will is a misconceived idea and that our notions of moral responsibility need radical revision. The book is of considerable relevance not only to academic philosophy but also to scientists and jurisprudents interested in the implications of this study. Originally published in 1979.

Deleuze & Guattari: Emergent Law is an exposition and development of Deleuze & Guattari's legal theory. Although there has been considerable interest in Deleuze & Guattari in critical legal studies, as well as considerable interest in legality in Deleuze & Guattari studies, this is the first book to focus exclusively on Deleuze & Guattari and law. Situating Deleuze & Guattari's engagement with social organisation and legality in the context of their theory of 'abstract machines' and 'intensive assemblages', Jamie Murray presents their theory of law as that of a two-fold conception of, first, a transcendent molar law and, second, an immanent molecular emergent law. Transcendent molar legality is the traditional object of legal theory. And, as explicated here, immanent molecular emergent law is the novel juridical object that Deleuze & Guattari identify. Developing this conception, Deleuze & Guattari: Emergent Law draws out its implications for current and for future legal theory; arguing that it provides the basis for a new jurisprudence capable of creating new concepts of legality.

The Routledge Companion to the Philosophy of Law provides a comprehensive, non-technical philosophical treatment of the fundamental questions about the nature of law. Its coverage includes law's relation to morality and the moral obligations to obey the law, the main philosophical debates about particular legal areas such as criminal responsibility, property, contracts, family law, law and justice in the international domain, legal paternalism and the rule of law.

The entirely new content has been written specifically for newcomers to the field, making the volume particularly useful for undergraduate and graduate courses in philosophy of law and related areas. All 39 chapters, written by the world's leading researchers and edited by an internationally distinguished scholar, bring a focused, philosophical perspective to their subjects. The Routledge Companion to the Philosophy of Law promises to be a valuable and much consulted student resource for many years.

This book takes up the postcolonial challenge for law and explains how the problems of legal recognition for Indigenous peoples are tied to an orthodox theory of law. Constructing a theory of legal pluralism that is both critical of law's epistemological and ontological presuppositions, as well as discursive in engaging a dialogue between legal traditions, Anker focusses on prominent aspects of legal discourse and process such as sovereignty, proof, cultural translation and negotiation. With case studies and examples principally drawn from Australia and Canada, the book seeks to set state law in front of its own reflection in the mirror of Indigenous rights, drawing on a broad base of scholarship in addition to legal theory, from philosophy, literary studies, anthropology, social theory, Indigenous studies and art. As a contribution to legal theory, the study advances legal pluralist approaches not just by imagining a way to 'make space for' Indigenous legal traditions, but by actually working with their insights in building theory. The book will be of value to students and researchers interested in Indigenous rights as well as those working in the areas of socio-legal studies, legal pluralism and law and cultural diversity.

Althusser and Law is the first book specifically dedicated to the place of law in Louis Althusser s philosophy. The growing importance of Althusser s philosophy in contemporary debates on the left has - for practical and political, as well theoretical reasons - made a sustained consideration of his conception of law more necessary than ever. As a form of what Althusser called Ideological State Apparatuses, law is at the forefront of political struggles: from the destruction of Labour Law to the exploitation of Patent Law; from the privatisation of Public Law to the ongoing hegemony of Commercial Law; and from the discourse on Human Rights to the practice of judicial courts. Is Althusser still useful in helping us to understand these struggles? Does he have something to teach us about how law is produced, and how it is used and misused? This collection demonstrates that Althusser s ideas about law are more important, and more contemporary, than ever. Indeed, the contributors to Althusser and Law argue that Althusser offers a new and invaluable perspective on the place of law in contemporary life."

This collection of socio-legal studies, written by leading theorists and researchers from around the world, offers original, perceptive and critical contributions to ideas and theories that have been expounded by Roger Cotterrell over a long and distinguished career. Engaging with many classic issues and theories of the sociology of law, the contributions are likely to become classics themselves as they tackle some of the most significant challenges that modern law faces. They do not shy away from what one of the contributors describes as the complexity and multiplicity of our contemporary legal world. The book is organized in three parts: socio-legal themes; methodological and jurisprudential themes; globalization, cultural and comparative law themes. Starting with a chapter that re-engages with the need to interpret legal ideas sociologically, and ending with one that explores the global significance of modern fascination with the idea of the rule of law, this selection offers important additions to the oeuvre of Roger Cotterrell (a list of whose academic writings is included in the book).

'I swear to tell the truth, the whole truth, and nothing but the truth' we say in a court of law. 'In a court of law, the truth is precisely what we will not say', says Lacan. 'If God is dead, everything is permitted', writes Dostoyevsky. 'If God is dead, everything is prohibited', responds Lacan. 'I think, therefore I am', reasons Descartes. 'I am where I do not think', concludes Lacan. What are we to make of Lacan's inversions of these mottos? And what are the implications for the legal system if we take them seriously? This book puts the legal subject on the couch and explores the incestuous relationship between law and desire, enjoyment and transgression, freedom and subjection, ethics and atheism. The process of analysis problematizes fundamental tenets of the legal system, leading the patient to rethink long-held beliefs: terms like 'guilt' and 'innocence', 'truth' and 'lies', 'reason' and 'reality', 'freedom' and 'responsibility', 'cause' and 'punishment', acquire new and surprising meanings. By the end of these sessions, the patient is left wondering, along with Freud her analyst, whether 'it is not psychology that deserves the mockery but the procedure of judicial enquiry'. A unique study on the nexus of Law and Psychoanalysis, this book will interest students and scholars of both subjects, as well as general readers looking to explore this perverse and fascinating relationship.

Whereas previous studies of legitimacy and trust have mostly dealt with procedural justice and the police, this book focuses on other crucial understudied aspects of legitimacy within criminal law, policy and criminal justice. The chapters expand and develop current criminological, legal and socio-legal research by addressing conceptions of legitimacy linked to criminal law norms, criminalisation and sanctioning; by examining EU legal and policy aspects of the phenomenon; and by exploring some specific court-related issues of legitimacy and trust, hitherto neglected. With contributions from across the EU, this interdisciplinary collection presents a valuable discussion on the importance of trust in legal institutions of modern democracies and suggests ideas for future research in this area to challenge ways of thinking about legitimacy.

Drawing on multidisciplinary findings and ideas, this book discusses fair allocation of social resources, such as goods, services and information, in a novel and integrated way. The role of the essential features of allocation behavior: motivation, cognition and emotion, as well as morality and reactions to perceived unfairness are examined in the newly developed Justice Model. The author offers explanations as to why, how and to what extent, people, in an effort to attain justice, allocate social resources between self and others and among others. It is held that the allocation event, featuring actor, recipient and observer, as well as the resources to be allocated by an actor, can function as a guideline for the essentials of fair behavior. The work explores the conditions under which an actor may deviate from a just division of social resources thus instigating a reaction from recipients and observers. The study covers various levels of analysis ranging from the intra-personal to the societal. The book will be of interest to academics and researchers working in the areas of crime, law, justice, public policy and governance.

Gathering together an impressive array of legal scholars from around the world, this book features essays on Jeremy Bentham's major legal theoretical treatise, Of the Limits of the Penal Branch of Jurisprudence, reassessing Bentham's theories of law as well as his impact on jurisprudence. While offering a suggestive picture of contemporary Bentham studies, the book provides a thorough examination of concepts such as legal discourse, legal norms, legal system, and subjective legal positions. The book compares Bentham's approach with other landmark theories and the works of major legal philosophers including Austin, Hart and Kelsen, and explores Bentham's treatise through major trends in contemporary legal thought, such as the imperative theory of law, deontic logic, Scandinavian and American legal realisms, the pure theory of law, and critical legal thought. Resisting any apologetic stance, the book elucidates how consistent with Bentham's all-encompassing project of utilitarian reform 'Limits' turns out to be, and how this sheds light on contemporary modes of governance. The book will be great use and interest to scholars and students of contemporary jurisprudence, legal theory, 19th century philosophy, and public law.

The Logic of Innovation examines not merely the supposed problem of the efficacy and relevance of intellectual property, and the nature of innovation and creativity in a digital environment, but also the very circumstances of that inquiry itself. Social life has itself become a sphere of production, but how might that be understood within the cultural and structural transformation of creativity, innovation and property? Through a highly original interlocutory and therapeutic approach to the issues in play, the author addresses the concepts of innovation and the digital by means of an investigation through literature and the imagination of new scenarios for language, business and legal reform. The book undertakes a complex inquiry into innovation and property through the wonder of Alice's journeys in Wonderland and through the Looking-glass. The author presents a new theory of familiar production to account for the kinship that has emerged in both informal and commercial modes of innovation, and foregrounds the value of use as crucial to the articulation of intellectual property within contemporary models of production and commercialization in the digital.