This volume explores the relation between legal reasoning and logic from both a historical and a systematic perspective. The topics addressed include, among others, conditional legal acts, disjunctions in legal acts, presumptions and conjectures, conflicts of values, Jorgensens Dilemma, the Rhetors Dilemma, the theory of legal fictions and the categorization of contracts. The unifying problematic of these contributions concerns the conditional structures and, more particularly, the relationship between legal theory and legal reasoning in the context of conditions. The contributions in this work constitute the first results of the ANR-DFG joint research project "JuriLog" (Jurisprudence and Logic), which aims at fostering the cooperation between legal scholars and philosophers. On the one hand, lawyers and legal scholars have an interest in emphasizing the logical character of legal reasoning. In this respect, the present enquiry examines the question of how logic, especially newer forms of dialogical logic, can be made fruitful as a significant area of philosophy for jurisprudence and legal practice. On the other hand, logicians find in legal reasoning a striving towards clear definitions and inference-procedures that is relevant to their discipline. In order to fully understand such reciprocal relationships, it is necessary to bridge the gap between law, logic and philosophy in contemporary academic research. The essays collected in this volume all work towards this common goal. The book is divided in three sections. In the first part, the strong relation between Roman Law and logic is explored with respect to the analysis of disjunctive statements in legal acts. The second part focuses on Leibnizs legal theory. The third part, finally, is dedicated to current interactions between law and logic.

This book clarifies the meaning of the most important and pervasive concepts and tools in bioethical argumentation (principles, values, dignity, rights, duties, deliberation, prudence) and assesses the methodological suitability of the main methods for clinical decision-making and argumentation. The first part of the book is devoted to the most developed or promising approaches regarding bioethical argumentation, namely those based on principles, values and human rights. The authors then continue to deal with the contributions and shortcomings of these approaches and suggest further developments by means of substantive and procedural elements and concepts from practical philosophy, normative systems theory, theory of action, human rights and legal argumentation. Furthermore, new models of biomedical and health care decision-making, which overcome the aforementioned criticism and stress the relevance of the argumentative responsibility, are included.

This book proposes a different approach to theorising and analysing antitrust issues, working on the premise that at present, antitrust is addressed from top-down and narrow perspectives which in effect limit the attention paid to or exclude issues that could otherwise be considered. This reasoning is motivated by the pursuit of inclusiveness and broadness in the antitrust context. The work contends that traditional top-down antitrust theories are weak because they are incomplete and insufficient in their description and analysis of antitrust issues. Thus, it identifies the need to construct a bottom-up approach. Invariably, such an approach would have to avoid ex ante judgments about the suitability of the normative contents of antitrust laws and theories, lest it fall into the same trap that plagues traditional theories. As a possible solution, the author proposes a procedural account referred to as the person-centred approach (built on theories such as Sen's Capability) and carefully reviews its practicality.

This first critical examination of informal dispute processing links the institutionalization of alternatives to the court process and the ideology of informalism with the evolution of the American court system. The author connects dispute processing reform to the broader social and political context in which it developed, including the rise of judicial management in the Progressive period and the reconstruction of court unification in the 1970s. Harrington defines legal resources and their distribution in alternative dispute resolution policy before focusing on the institutionalization of this reform in a case study of a federally sponsored Neighborhood Justice Center. In conclusion, Harrington finds that the symbols of informalism and its institutions are a mere shadow of conventional legal practices.

Legal philosophy traditionally focuses on the courts, but not on the police - despite the fact that what the police do has considerable implications for what we understand law to be. Police writers in turn often overlook the subject of philosophy, and how philosophy can inform particular issues of police practice.
In The Jurisprudence of Police, Thomas Vincent Svogun closes this gap by developing a new philosophy of law in tandem with a new theory of law enforcement, thus providing the basis for a general unified theory of law that reconciles the work of legislators and judges with the work of police. Much attention is devoted to the shift in the police paradigm from technically oriented professional law enforcement to problem-oriented community policing. This book integrates literature in legal philosophy and police theory to elaborate new integrative theory, introduce new concepts, and make recommendations for future public policy.

This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen. It provides a single, dedicated space for a range of established European scholars to engage with the influential work of this Austrian jurist, legal philosopher, and political philosopher. The introduction provides a thematization of the Kelsenian notion of law as a legal science. Divided into six parts, the chapter contributions feature distinct levels of analysis. Overall, the structure of the book provides a sustained reflection upon central aspects of Kelsenian legal science and the nature of law. Parts one and two examine the validity of the project of Kelsenian legal science with particular reference to the social fact thesis, the notion of a science of positive law and the specifically Kelsenian concept of the basic norm (Grundnorm). The next three parts engage in a critical analysis of the relationship of Kelsenian legal science to constitutionalism, practical reason, and human rights. The last part involves an examination of the continued pertinence of Kelsenian legal science as a theory of the nature of law with a particular focus upon contemporary non-positivist theories of law. The conclusion discusses the increasing distance of contemporary theories of legal positivism from a Kelsenian notion of legal science in its consideration of the nature of law.

Sovereignty, Knowledge, Law investigates the notion of sovereignty from three different, but related perspectives: as a legal question in relation to the sovereign state, as a political question in relation to sovereign power, and as a metaphysical question in relation to sovereign self-knowledge. The varied and interchangeable uses of legal sovereignty, political sovereignty and metaphysical sovereignty in contemporary debates have resulted in a situation where the word sovereignty itself has become something of a non-concept. Panu Minkkinen shows here how these three perspectives have informed one another, by addressing their shared relationship to law, and to the autocephalous function of sovereignty; that is, the attempt to provide a single source and foundation for law, power, and self-knowledge. Through an effort to domesticate the intrinsically heterocephalous nature of power, the juridical and jurisprudential aim has been to confine power within the closed vertical hierarchy of traditional legal thinking. Sovereignty, Knowledge, Law thus elaborates this heterocephaly, proposing new understandings of sovereignty, as well as of law and of legal scholarship.

This book provides a comprehensive analysis of the presumption of innocence from both a practical and theoretical point of view. Throughout the book a framework for the presumption of innocence is developed. The book approaches the right to presumption of innocence from an international human rights perspective using specific examples drawn from international criminal law. The result is a framework for understanding the right that is grounded in human rights law. This framework can then be applied across different national and international systems. When applied, it can help determine when the presumption of innocence is being infringed upon, eroded, violated, and ensure that the presumption of innocence is protected. The book is an essential resource for students, academics and practitioners working in the areas of human rights, criminal law, international criminal law, and evidence. The themes also have a more general application to national jurisdictions and legal theory.

Kantianism, Postmodernism and Critical Legal Thought presents a challenging alternative theory of legal philosophy. The central thesis of the book suggests an accommodation between three of the most influential contemporary theories of law, Kantianism, postmodernism and critical legal thought. In doing so, it further suggests that the often perceived distance between these theories of law disguises a common intellectual foundation. This foundation lies in the work of Immanuel Kant. Kantianism, Postmodernism and Critical Legal Thought presents an intellectual history of critical legal thinking, beginning with Kant, and then proceeding through philosphers and legal theorists as diverse as Heidegger and Arendt, Foucault and Derrida, Rorty and Rawls, and Unger and Dworkin. Ultimately, it will be suggested that each of these philosophers is writing within a common intellectual tradition, and that by concentrating on the commonality of this tradition, contemporary legal theory can better appreciate the reconstructive potential of the critical legal project.

Teaching the Essentials of Law and Economics covers the core areas of law and economics, also known as the economic analysis of law, in non-technical terms with guiding notes throughout the text. Replete with cases and illustrations, it may be used both as a lecture guide for instructors, and as a basic text for students. The author provides an up-to-date and succinct account of the application of economic analysis to legal doctrines, institutions and legal reform. Classic cases taken from Anglo-American common law, with some consideration of civil law, along with more recent material, are used to illustrate the analysis. The book has a non-technical, built-in system designed to guide teaching as well as private study of the material. Professors and instructors teaching this growing field of inquiry as well as legal scholars interested in the influence of economics on American law, economists analyzing the incentive structure of legal systems and doctrines, public-policy students considering legal reform and judges and legal personnel seeking a succinct treatment of economics of law will be indebted to the author for this guide to Teaching Essentials of Law and Economics.

The philosophy of law - inquiry into the origins, nature and theory of laws and legal principles, and those concepts that structure the practice of law - is of great importance in moral and political philosophy, as well as being a major area of philosophical concern in its own right. Clear, concise and comprehensive, this is the ideal introduction to the philosophy of law for those studying it for the first time. Drawing upon both the analytic Anglo-American and Continental schools of philosophy, Law: Key Concepts in Philosophy summarises the work of key thinkers in the philosophy of law, including Rousseau, Hobbes, Austin, Hegel, Mill, Marx, Dworkin and Rawls. It provides lucid and thorough explication and analysis of central concerns in legal philosophy, covering criminal law, civil law and constitutional law. Finally, the text also addresses key issues in contemporary philosophy of law, including human rights, international law and questions of race and gender.

Explaining and Understanding Adjudication is the first book that attempts to analyse and define the methodology and values of contemporary accounts of adjudication, which can be divided into orthodox philosophies on the one hand and heretical accounts on the other. The author offers an incisive and original analysis of how these supposedly incompatible accounts actually differ. Through an evaluation of Neil MacCormick, Joseph Raz and Ronald Dworkin as the principal exponents of the orthodoxy and Duncan Kennedy and Roberto Unger providing the heretical accounts, William Lucy argues that there are few important differences between the two. Rather, the author concludes, both theories have acute problems in relation to the methodology and values they apply in interpreting adjudication.

This is a well-argued explication of a set of general criteria for deciding whether specialized adjudication in specialized tribunals or courts is more appropriate than generalist adjudication in ordinary court. Legomsky tests his theory against the working of the Administrative division of the New Zealand High Court, and ends with an assessment of the difficulties in comparison due to the diversity of governmental systems in states with different constitutional arrangements. A significant contribution to an increasingly important topic in American law--the role of specialized adjudicative units--this volume will be a valuable work for students and scholars of public law, the legal system, comparative law, and socio-legal studies.

The book provides a comprehensive analysis of the advisory role of the International Court of Justice in light of its jurisprudence and overall contribution over a period of more than 55 years. The author highlights the "organic connection" between UN organs and the Court and the Court 's contribution as one of the UN 's principal organs to the Organisation. The basic argument of this study is that the advisory function should be understood as a two-sided process involving the interplay between UN organs and the ICJ. The request for and the giving of an advisory opinion is a collective coordinated process, involving more than one organ or part of the Organisation.

What can we say about justice in a pluralist world? Is there some universal justice? Are there universal human rights? What is the function of the state in the modern world? Such are the problems dealt with by the 20th world congress of the International Association for Philosophy of Law and Social Philosophy (Amsterdam, June 2001) and published in this book, which is for legal and social philosophers, students of human rights, and political philosophers.

The scandal of this collection lies not just in its equating law and resistance but also in its consequent revision of those critical, realist, social, and even positivist theories that would constitute law in its dependence on sovereign or society, on some surpassing power, or on the state of the judge's digestion. There is as well a further provocation offered by the collection in that the most marginalized of resistances through law are found to be the most destabilizing of standard paradigms of legal authority. Instances of such seeming marginality explored here include the resistances of colonized and indigenous peoples and resistance pursued through international law. What this 'marginal' focus also reveals is the constituent connection between modernism, imperialism and that legalism produced by the ready reduction of law in terms of sovereign, society and such. In all, the collection makes a radical contribution to social, political and postcolonial theories of law.

This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.

These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic.

In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the book s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study.

On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic ( defeasible ) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail."

The need to balance power between the Member States and the Union, and between public power and the market, has created powerful constitutional dilemmas for the European Union. This new book describes and analyzes the new Economic Constitution developed by the European Court of Justice. In doing so it discusses different constitutional models and forms of legitimacy and evaluates the limits to state and public intervention in the market, the division of competences between Member States and the EU, the principle of non-discrimination, and the notion of fundamental rights. This leads to a critical examination of the process of constitution-making in the EU, and the role of the Court of Justice in this process.

This book restores to view a masterpiece of beauty and legal scholarship, which has been lost for almost two hundred years.  Produced anonymously in 1838, The Tree of Legal Knowledge is an elaborate visualization in five large colored plates of the law as stated in Sir William Blackstone’s Commentaries on the Laws of England.  Intended as “an assistant for students in the study of law,” the study aid was not a simple diagram but a beautiful tree with each branch and twig labeled with legal terms and concepts from the Commentaries.  Not for law students only, the original was also intended to be of use to the practicing attorney and educated gentleman “in consolidating his learning and forming an instructive and ornamental appendage to an office.” Although Blackstone’s Commentaries had been first published eighty years earlier, it remained the primary source for knowledge of English law and required reading for American law students.  The Commentaries remain relevant today and are frequently cited by the U.S. Supreme Court as a source for the original understanding of legal rights and obligations at the time of American Independence.  Despite its artistic beauty and academic significance, The Tree of Legal Knowledge had seemingly disappeared shortly after its publication.  It is not included in the collection of any library, including the Library of Congress or in Yale University’s Blackstone Collection, the largest in the world.  It is not listed in the comprehensive Bibliographical Catalog of William Blackstone, edited by Ann Jordan Laeuchli, published for the Yale Law Library in 2015.   The present volume reproduces the only extant copy of The Tree of Legal Knowledge.  It includes an introduction by the editor that places The Tree in historical context and identifies the anonymous author, an otherwise unknown lawyer.  In addition, it reprints the original author’s introduction and “explanation of the branches,” both extensively annotated.  This book restores this lost masterpiece to its proper place in legal history.  The Tree is a beautiful—and accurate—depiction of English law as expounded in Blackstone’s Commentaries, the single most important book in the history of the common law.

Caring for Liberalism brings together chapters that explore how liberal political theory, in its many guises, might be modified or transformed to take the fact of dependency on board. In addressing the place of care in liberalism, this collection advances the idea that care ethics can help respond to legitimate criticisms from feminists who argue that liberalism ignores issues of race, class, and ethnicity. The chapters do not simply add care to existing liberal political frameworks; rather, they explore how integrating dependency might leave core components of the traditional liberal philosophical apparatus intact, while transforming other aspects of it. Additionally, the contributors address the design of social and political institutions through which care is given and received, with special attention paid to non-Western care practices. This book will appeal to scholars working on liberalism in philosophy, political science, law, and public policy, and it is a must-read for feminist political philosophers.

* Translation of a prestigious and successful German publication;

This book discusses the designs and applications of the social systems theory (built by Niklas Luhmann, 1927-1998) in relation to empirical socio-legal studies. This is a sociological and legal theory known for its highly complex and abstract conceptual apparatus. But how to change its scale in order to study more localised phenomena, and to deal with empirical data, such as case law, statutes, constitutions and regulation? This is the concern of a wide variety of scholars from many regions engaged in this volume. It focuses on methodological discussions and empirical examples concerning the innovations and potentials that functional and systemic approaches can bring to the study of legal phenomena (institutions building, argumentation and dispute-settlement), in the interface with economy and regulation, and with politics and public policies. It also discusses connections and contrasts with other jurisprudential approaches - for instance, with critical theory, law and economics, and traditional empirical research in law. Two decades after Luhmann's death, the 21st century has brought countless transformations in technologies and institutions. These changes, resulting in a hyper-connected, ultra-interactive world society bring operational and reflective challenges to the functional systems of law, politics and economy, to social movements and protests, and to major organisational systems, such as courts and enterprises, parliaments and public administration. Pursuing an empirical approach, this book details the variable forms by which systems construct their own structures and semantics and 'irritate' each other. Engaging Luhmann's theoretical apparatus with empirical research in law, this book will be of interest to students and researchers in the field of socio-legal studies, the sociology of law, legal history and jurisprudence.

This book examines the law and its practice in the United Arab Emirates (UAE). The objective is to understand the logic of the legal system in the UAE through a rounded analysis of its laws in context. It thus presents an understanding of the system on its own terms beyond the accepted Western model. The book shows how the Emirati law differs from the conventional rule of law. The first section of the book deals with the imperial, international, and cultural background of the Emirati legal system and its influences on some of the elements of the legal system today. It maps the state's international legal obligations according to core human rights treaties showing how universal interpretations of rights may differ from Emirati interpretations of rights. This logic is further illustrated through an overview of the legal system, in federal, local, and free zones and how the UAE's diversity of legal sources from Islamic and colonial law provides legal adaptability. The second section of the book deals mainly with the contemporary system of the rule of law in the UAE but at times makes a detour to the British administration to show how imperial execution of power during the British administration created forerunners visible today. Finally, the debut of the UAE on the international scene contributed to an interest in human rights investigations, having manifestations in UAE law. The work will be a valuable resource for researchers and academics working in the areas of Comparative Constitutional Law, Legal Anthropology, Legal Pluralism, and Middle Eastern Studies.

Analytical jurisprudence has been mostly silent on the role of precedent in legal adjudication. What is the content of a judge's precedent ideology,or the rule of precedent-recognition, by means of which the ratio of a case is to be distinguished from mere dicta? In this study, the author identifies six types of judicial precedent-ideology, among them judicial legislation, systemic construction of the underlying reasons of law in the Dworkinian sense, and a radical re-evaluation of the merits of a prior case in later adjudication, as envisioned by the American Realists. These competing models are tested against judicial experiences in the UK, US, France, Italy, Germany and Finland. By this means Lon Fuller's famous 'internal morality of law' is shown to function rather poorly in the context of precedents, and the author therefore suggests a redefinition of the rule which makes it work for precedent. This, in turn leads the author to confront fundamental questions about the normative nature of law. Is Kelsen's grundnorm or Hart's ultimate rule of recognition a valid rule, in the image of legal rules proper, or is it merely a social fact, observable only in the practices and behaviour of judges and other officials? The author claims that Hart is caught between Kelsen and J.L. Borges, the late Argentinian fabulist, in so far as the ontology and epistemology of the rule of recognition are concerned. This leads the author to the conclusion that the two predicaments affecting analytical positivism, namely the threat of endless self-referentiality, or infinite regress, can only be accounted for by means of recourse to the philosophy of deconstruction as posited by Jacques Derrida.

This book provides a systematic and detailed introduction to the formation process and current development of China's socialist legal system. The classification of the constitution and constitution-related laws, criminal law, civil and commercial law, administrative law, economic law, litigation and non-litigation procedural law, social law, and the specifics of each sector of law are explained, which is a good guide for understanding the framework of China's legal system and the study of each sector of jurisprudence.