|
Books > Law > Jurisprudence & general issues > Jurisprudence & philosophy of law
'A fascinating collection of essays that reveal the multiple facets
of lawmaking in an increasingly interconnected world. In addition
to the role played by States, numerous institutional and judicial
actors now contribute to lawmaking. In charting these developments,
this book provides a rich analytical appraisal of the manifold
normative processes in the contemporary international legal order.'
- Laurence Boisson de Chazournes, University of Geneva,
SwitzerlandThe global landscape has changed profoundly over the
past decades. As a result, the making of international law and the
way we think about it has become more and more diversified. This
Research Handbook offers a comprehensive guide to the theory and
practice of international lawmaking today. It takes stock at both
the conceptual and the empirical levels of the instruments,
processes, and actors involved in the making of international law.
The Editors have taken an approach which carefully combines theory
and practice in order to provide both an overview and a critical
reflection of international lawmaking. Comprehensive and
well-structured, the book contains essays by leading scholars on
key aspects of international lawmaking and on lawmaking in the main
issue areas. Attention is paid to classic processes as well as new
developments and shades of normativity. This timely and
authoritative handbook will be a valuable resource for academics,
students, legal practitioners, diplomats, government and
international organization officials as well as civil society
representatives. Contributors: M.S. Barr, B.I. Bonafe, C.
Broelmann, D. Costelloe, J. d'Aspremont, M. Fitzmaurice, M.E.
Footer, G.I. Hernandez, J. Kammerhofer, O. McIntyre, P. Palchetti,
D. Patterson, Y. Radi, F. Romanin Jacur, K. Schmalenbach, O.M.
Sender, M. Tignino, A. Tzanakopoulos, V.P. Tzevelekos, S. Vasiliev,
I. Venzke, W.G. Werner, R.A. Wessel, M. Wood, B.K. Woodward
The notion of the posthuman continues to both intrigue and confuse,
not least because of the huge number of ideas, theories and figures
associated with this term. More Posthuman Glossary provides a way
in to the dizzying array of posthuman concepts, providing vivid
accounts of emerging terms. It is much more than a series of
definitions, however, in that it seeks to imagine and predict what
new terms might come into being as this exciting field continues to
expand. A follow-up volume to the brilliant interventions of
Posthuman Glossary (2018), this book extends and elaborates on that
work, particularly focusing on concepts of race, indigeneity and
new ideas in radical ecology. It also includes new and emerging
voices within the new humanities and multiple modes of
communicating ideas. This is an indispensible glossary for those
who are exploring what the non-human, inhuman and posthuman might
mean in the 21st century.
The Common Law is Oliver Wendell Holmes' most sustained work of
jurisprudence. In it the careful reader will discern traces of his
later thought as found in both his legal opinions and other
writings. At the outset of The Common Law Holmes posits that he is
concerned with establishing that the common law can meet the
changing needs of society while preserving continuity with the
past. A common law judge must be creative, both in determining the
society's current needs, and in discerning how best to address
these needs in a way that is continuous with past judicial
decisions. In this way, the law evolves by moving out of its past,
adapting to the needs of the present, and establishing a direction
for the future. To Holmes' way of thinking, this approach is
superior to imposing order in accordance with a philosophical
position or theory because the law would thereby lose the
flexibility it requires in responding to the needs and demands of
disputing parties as well as society as a whole. According to
Holmes, the social environment--the economic, moral, and political
milieu--alters over time. Therefore in order to remain responsive
to this social environment, the law must change as well. But the
law is also part of this environment and impacts it. There is,
then, a continual reciprocity between the law and the social
arrangements in which it is contextualized. And, as with the
evolution of species, there is no starting over. Rather, in most
cases, a judge takes existing legal concepts and principles, as
these have been memorialized in legal precedent, and adapts them,
often unconsciously, to fit the requirements of a particular case
and present social conditions.
This collection of original essays brings together leading legal
historians and theorists to explore the oft-neglected but important
relationship between these two disciplines. Legal historians have
often been sceptical of theory. The methodology which informs their
own work is often said to be an empirical one, of gathering
information from the archives and presenting it in a narrative
form. The narrative produced by history is often said to be
provisional, insofar as further research in the archives might
falsify present understandings and demand revisions. On the other
side, legal theorists are often dismissive of historical works.
History itself seems to many theorists not to offer any
jurisprudential insights of use for their projects: at best,
history is a repository of data and examples, which may be drawn on
by the theorist for her own purposes. The aim of this collection is
to invite participants from both sides to ask what lessons legal
history can bring to legal theory, and what legal theory can bring
to history. What is the theorist to do with the empirical data
generated by archival research? What theories should drive the
historical enterprise, and what wider lessons can be learned from
it? This collection brings together a number of major theorists and
legal historians to debate these ideas.
Behind the scenes of the many artists and innovators flourishing
beyond the bounds of intellectual property laws Intellectual
property law, or IP law, is based on certain assumptions about
creative behavior. The case for regulation assumes that creators
have a fundamental legal right to prevent copying, and without this
right they will under-invest in new work. But this premise fails to
fully capture the reality of creative production. It ignores the
range of powerful non-economic motivations that compel creativity,
and it overlooks the capacity of creative industries for
self-governance and innovative social and market responses to
appropriation. This book reveals the on-the-ground practices of a
range of creators and innovators. In doing so, it challenges
intellectual property orthodoxy by showing that incentives for
creative production often exist in the absence of, or in disregard
for, formal legal protections. Instead, these communities rely on
evolving social norms and market responses-sensitive to their
particular cultural, competitive, and technological
circumstances-to ensure creative incentives. From tattoo artists to
medical researchers, Nigerian filmmakers to roller derby players,
the communities illustrated in this book demonstrate that
creativity can thrive without legal incentives, and perhaps more
strikingly, that some creative communities prefer, and thrive, in
environments defined by self-regulation rather than legal rules.
Beyond their value as descriptions of specific industries and
communities, the accounts collected here help to ground debates
over IP policy in the empirical realities of the creative process.
Their parallels and divergences also highlight the value of rules
that are sensitive to the unique mix of conditions and motivations
of particular industries and communities, rather than the
monoculture of uniform regulation of the current IP system.
This book sets out a possible trajectory for the co-development of
legal responsibility on the one hand and artificial intelligence
and the machines and systems driven by it on the other. As
autonomous technologies become more sophisticated it will be harder
to attribute harms caused by them to the humans who design or work
with them. This will put pressure on legal responsibility and
autonomous technologies to co-evolve. Mark Chinen illustrates how
these factors strengthen incentives to develop even more advanced
systems, which in turn inspire nascent calls to grant legal and
moral status to autonomous machines. This book is a valuable
resource for scholars and practitioners of legal doctrine, ethics
and autonomous technologies, as well as legislators and policy
makers, and engineers and designers who are interested in the
broader implications of their work.
Judging Positivism is a critical exploration of the method and
substance of legal positivism. Author Margaret Martin is primarily
concerned with the manner in which theorists who adopt the dominant
positivist paradigm ask a limited set of questions and offer an
equally limited set of answers, artificially circumscribing the
field of legal philosophy in the process. The book focuses
primarily, but not exclusively, on the writings of prominent legal
positivist Joseph Raz. Martin argues that Raz's theory has changed
over time and that these changes have led to deep inconsistencies
and incoherencies in his account. One reoccurring theme in the book
is that Razian positivism collapses from within. In the process of
defending his own position, Raz is led to support the views of many
of his main rivals, namely Ronald Dworkin, the legal realists, and
the normative positivists. The internal collapse of Razian
positivism proves to be instructive. Promising paths of inquiry
come into view and questions that have been suppressed or
marginalized by positivists re-emerge, ready for curious minds to
reflect on anew. The broader vision of jurisprudential inquiry
defended in this book re-connects philosophy with the work of
practitioners and the worries of law's subjects, bringing into
focus the relevance of legal philosophy for lawyers and laymen
alike.
This book analyzes the implication of secular/liberal values in
Western and human rights law and its impact on Muslim women. It
offers an innovative reading of the tension between the religious
and secular spheres. The author does not view the two as binary
opposites. Rather, she believes they are twin categories that
define specific forms of lives as well as a specific notion of
womanhood. This divergence from the usual dichotomy opens the doors
for a reinterpretation of secularism in contemporary Europe. This
method also helps readers to view the study of religion vs.
secularism in a new light. It allows for a better understanding of
the challenges that contemporary Europe now faces regarding the
accommodation of different religious identities. For instance, one
entire section of the book concerns the practice of veiling and
explores the contentious headscarf debate. It features case studies
from Germany, France, and the UK. In addition, the analysis
combines a wide range of disciplines and employs an integrated,
comparative, and inter-disciplinary approach. The author
successfully brings together arguments from different fields with a
comparative legal and political analysis of Western and Islamic law
and politics. This innovative study appeals to students and
researchers while offering an important contribution to the debate
over the role of religion in contemporary secular Europe and its
impact on women's rights and gender equality.
The first volume of the Vienna Lectures on Legal Philosophy
illustrates the remarkable scope of contemporary legal philosophy.
It introduces methodological questions rooted in national academic
discourses, discusses the origin of legal systems, and contrasts
constitutionalist and monist approaches to the rule of law with the
institutionalist approach most prominently and vigorously defended
by Carl Schmitt. The issue at the core of these topics is which of
these perspectives is more plausible in an age defined both by a
'postnational constellation' and the re-emergence of nationalist
tendencies; an age in which the law increasingly cancels out
borders only to see new frontiers erected.
This book examines why laws fail and provides strategies for making
laws that work. Why do some laws fail? And how can we make laws
that actually work? This helpful guide, written by a leading
jurist, provides answers to these questions and gives practical
strategies for law-making. It looks at a range of laws which have
failed; the 'damp squibs' that achieve little or nothing in
practice; laws that overshoot their policy goals; laws that produce
nasty surprises; and laws that backfire, undermining the very goals
they were intended to advance. It goes on to examine some of the
reasons why such failures occur, drawing on insights from
psychology and economics, including the work of Kahneman and others
on how humans develop narratives about the ways in which the world
works and make predictions about the future. It provides strategies
to reduce the risk of failure of legislative projects, including
adopting a more structured and systematic approach to analysing the
likely effects of the legislation; ensuring we identify the limits
of our knowledge and the uncertainties of our predictions; and
framing laws in a way that enables us to adjust the way they
operate as new information becomes available or circumstances
change. Key themes include the importance of the institutions that
administer the legislation, of default outcomes, and of the
'stickiness' of those defaults. The book concludes with helpful
checklists of questions to ask and issues to consider, which will
be of benefit to anyone involved in designing legislation.
This new book advances a fresh philosophical account of the
relationship between the legislature and courts, opposing the
common conception of law, in which it is legislatures that
primarily create the law, and courts that primarily apply it. This
conception has eclectic affinities with legal positivism, and
although it may have been a helpful intellectual tool in the past,
it now increasingly generates more problems than it solves. For
this reason, the author argues, legal philosophers are better off
abandoning it. At the same time they are asked to dismantle the
philosophical and doctrinal infrastructure that has been based on
it and which has been hitherto largely unquestioned. In its place
the book offers an alternative framework for understanding the role
of courts and the legislature; a framework which is distinctly
anti-positivist and which builds on Ronald Dworkin's interpretive
theory of law. But, contrary to Dworkin, it insists that legal duty
is sensitive to the position one occupies in the project of
governing; legal interpretation is not the solitary task of one
super-judge, but a collaborative task structured by principles of
institutional morality such as separation of powers which impose a
moral duty on participants to respect each other's contributions.
Moreover this collaborative task will often involve citizens taking
an active role in their interaction with the law.
The Continuity of Legal Systems in Theory and Practice examines a
persistent and fascinating question about the continuity of legal
systems: when is a legal system existing at one time the same legal
system that exists at another time? The book's distinctive approach
to this question is to combine abstract critical analysis of two of
the most developed theories of legal systems, those of Hans Kelsen
and Joseph Raz, with an evaluation of their capacity, in practice,
to explain the facts, attitudes and normative standards for which
they purport to account. That evaluation is undertaken by reference
to Australian constitutional law and history, whose diverse and
complex phenomena make it particularly apt for evaluating the
theories' explanatory power. In testing whether the depiction of
Australian law presented by each theory achieves an adequate 'fit'
with historical facts, the book also contributes to the
understanding of Australian law and legal systems between 1788 and
2001. By collating the relevant Australian materials systematically
for the first time, it presents the case for reconceptualising the
role of Imperial laws and institutions during the late nineteenth
and early twentieth centuries, and clarifies the interrelationship
between Colonial, State, Commonwealth and Imperial legal systems,
both before and after Federation.
The first-ever multivolume treatment of the issues in legal
philosophy and general jurisprudence, from both a theoretical and a
historical perspective. The work is aimed at jurists as well as
legal and practical philosophers. Edited by the renowned theorist
Enrico Pattaro and his team, this book is a classical reference
work that would be of great interest to legal and practical
philosophers as well as to jurists and legal scholar at all levels.
The work is divided in two parts. The theoretical part (published
in 2005), consisting of five volumes, covers the main topics of the
contemporary debate; the historical part, consisting of six volumes
(Volumes 6-8 published in 2007; Volumes 9 and 10, published in
2009; Volume 11 published in 2011 and Volume 12 forthcoming in
2015), accounts for the development of legal thought from ancient
Greek times through the twentieth century. The entire set will be
completed with an index. Volume 6: A History of the Philosophy of
Law from the Ancient Greeks to the Scholastics 2nd revised edition,
edited by Fred D. Miller, Jr. and Carrie-Ann Biondi Volume 6 is the
first of the Treatise's historical volumes (following the five
theoretical ones) and is dedicated to the philosophers' philosophy
of law from ancient Greece to the 16th century. The volume thus
begins with the dawning of legal philosophy in Greek and Roman
philosophical thought and then covers the birth and development of
European medieval legal philosophy, the influence of Judaism and
the Islamic philosophers, the revival of Roman and Christian canon
law, and the rise of scholastic philosophy in the late Middle Ages,
which paved the way for early-modern Western legal philosophy. This
second, revised edition comes with an entirely new chapter devoted
to the later Scholastics (Chapter 14, by Annabel Brett) and an
epilogue (by Carrie-Ann Biondi) on the legacy of ancient and
medieval thought for modern legal philosophy, as well as with
updated references and indexes.
According to many Islamic jurists, the world is divided between dar
al-Islam (the abode of Islam) and dar al-harb (the abode of war).
This dual division of the world has led to a great amount of
juridical discussion concerning what makes a territory part of dar
al-Islam, what the status of Muslims living outside of this is, and
whether they are obliged to obey Islamic jurisprudence. Susanne
Olsson examines the differing understandings of dar al-Islam and
dar al-harb, as well as related concepts, such as jihad and takfir.
She thereby is able to explore how these concepts have been
utilised, transformed and negotiated throughout history. As the
subject of Muslims living in Europe is such a topical and sometimes
controversial one, this book will appeal to researchers of modern
Islam as integral to the Western experience.
This book analyses the history of international law to reveal the
significant role utopianism has played in developing the
international legal system. In fact, when pinpointing the legal
system's most accelerated phases of development, it becomes
increasingly apparent how integral utopianism has been in dealing
with the international community's most troubled periods such as
the World Wars. However, States have on numerous occasions
undermined utopianism, leading to situations where individuals and
communities have been vulnerable to modes of oppression such as war
or repressive regimes. Thus, by examining the League of Nations and
United Nations, this book seeks to show why utopianism continues to
be a vital ingredient when the international community is seeking
to ensure its loftiest and most ambitious goals such as maintaining
international peace and security, and why for the sake of such
utopian aspirations, the primary position States enjoy in
international law requires reassessment.
The book presents a comprehensive reconceptualization of Geert
Hofstede's well-known concept of power distance, applying the
theory to the specific case of judge-witness courtroom interactions
in Polish regional courts. In the light of the detailed critique of
Hofstede's original approach to power distance, the book first
carefully develops a three-level concept of power distance,
including personal preferences concerning the realization of power
relations (subjective level); rules, practices and
spatio-architectural arrangements underlying power relations
(organizational level); and individual demeanors that can, in
practice, increase or decrease the asymmetry between parties to a
power relation (interactional level). This reconceptualization
provides a universal conceptual apparatus that is applicable to
various social settings, but the authors have used it in extensive
qualitative and quantitative research focused on courtroom
interactions. After laying the theoretical foundations, the book
details the elements of judge-witness courtroom interactions (both
verbal and non-verbal) that contribute to establishing power
distance between judge and witness. These were identified over 6
months of observational research conducted in 2018 in the Krakow
regional courts. Lastly, the book addresses the issue of the
relationship between the subjective level of power distance and
opinions that laypeople can have concerning a judge's demeanor in
the courtroom environment. To do so, it describes specific
quantitative research that involved the creation of original film
clips depicting witness questioning by the judge in a courtroom in
three power distance situations. Offering a coherent framework for
examining various interpersonal relations in legal contexts and
illustrating how the framework can be applied on the courtroom
interactions example, the book will appeal to a wide range of legal
practitioners and academics. It also allows scientists outside the
legal field to gain a new and broad understanding of power distance
that they can easily apply in their respective fields. Furthermore,
it provides non-academics with insights into courtroom
interactional dynamics, as exemplified by the discussion of Polish
judicial practice.
|
|