This book advances a new interpretation of Hart’s penal philosophy. Positioning itself in opposition to current interpretations, the book argues that Hart does not defend a mixed theory of punishment, nor a rule utilitarian theory of punishment, nor a liberal form of utilitarianism, nor a goal/constraint approach. Rather, it is argued, his penal philosophy is based on his moral pluralism, which comprises two aspects: value pluralism and pluralism with respect to forms of moral reason. It is held that this means, on the one hand, that criminal law has an irreducible complexity due to the compromises it makes to accommodate competing values, and on the other hand, that there need not be one single justification of punishment. This original interpretation is not based only on Hart’s key volume on the subject Punishment and Responsibility, but on a careful reading of his complete works. The book will be a valuable resource for academics and researchers interested in Hart’s philosophy, the philosophy of law and criminal law.

This open access book can be downloaded from link.springer.com Legal studies and consequently legal history focus on constitutional documents, believing in a nominalist autonomy of constitutional semantics. Reconsidering Constitutional Formation in the late 18th and 19th century, kept historic constitutions from being simply log-books for political experts through a functional approach to the interdependencies between constitution and public discourse. Sovereignty had to be 'believed' by the subjects and the political elites. Such a communicative orientation of constitutional processes became palpable in the 'religious' affinities of the constitutional preambles. They were held as 'creeds' of a new order, not only due to their occasional recourse to divine authority, but rather due to the claim for eternal validity contexts of constitutional guarantees. The communication dependency of constitutions was of less concern in terms of the preamble than the constituents' big worries about government organisation. Their indecisiveness between monarchical and popular sovereignty was established through the discrediting of the Republic in the Jacobean reign of terror and the 'renaissance' of the monarchy in the military resistance against the French revolutionary and later Napoleonic campaigns. The constitutional formation as a legal act of constituting could therefore defend the monarchy from the threat of the people (Albertine Statute 1848), could be a legal decision of a national constituent assembly (Belgian Constitution 1831), could borrow from the old liberties (Polish May Constitution 1791) or try to remain in between by referring to the Nation as sovereign (French September Constitution 1791, Cadiz Constitution 1812). Common to all contexts is the use of national sovereignty as a legal starting point. The consequent differentiation between constituent and constituted power manages to justify the self-commitment of political power in legal terms. National sovereignty is the synonym for the juridification of sovereignty by means of the constitution. The novelty of the constitutions of the late 18th and 19th century is the normativity, the positivity of the constitutional law as one unified law, to be the measure for the legality of all other law. Therefore ReConFort will continue with the precedence of constitution. (www.reconfort.eu)

This book bridges a scholarly divide between empirical and normative theorizing about procedural justice in the context of relations of power between citizens and the state. Empirical research establishes that people's understanding of procedural justice is shaped by relational factors. A central premise of this volume is that this research is significant but needs to be complemented by normative theorizing that draws on relational theories of ethics and justice to explain the moral significance of procedures and make normative sense of people's concerns about relational factors. The chapters in Part 1 provide comprehensive reviews of empirical studies of procedural justice in policing, courts and prisons. Part 2 explores empirical and normative perspectives on procedural justice and legitimacy. Part 3 examines philosophical approaches to procedural justice. Part 4 considers the implications of a relational perspective for the design of procedures in a range of legal contexts. This collection will be of interest to a wide academic readership in philosophy, law, psychology and criminology.

Written by experts from within their communities, this book compares the legal regimes of Christian churches as systems of religious law. The ecumenical movement, with its historical theological focus, has failed to date to address the role of church law in shaping relations between churches and fostering greater mutual understanding between them. In turn, theologians and jurists from the different traditions have not hitherto worked together on a fully ecumenical appreciation of the potential value of church laws to help, and sometimes to hinder, the achievement of greater Christian unity. This book seeks to correct this ecumenical church law deficit. It takes account of the recent formulation by an ecumenical panel of a Statement of Principles of Christian Law, which has been welcomed by Pope Francis and the Ecumenical Patriarch of Constantinople, leader of the Orthodox Church worldwide, as recognizing the importance of canon law for ecumenical dialogue. This book, therefore, not only provides the fruits of an understanding of church laws within ten Christian traditions, but also critically evaluates the Statement against the laws of these individual ecclesial communities. The book will be an essential resource for scholars of law and religion, theology, and sociology. It will also be of interest to those working in religious institutions and policy-makers.

* Translation of a prestigious and successful German publication;

This book reflects on the significance of duties in creating an egalitarian society by collating and contextualizing the relevant literature. It particularly focuses on an appreciation of Gandhi's views on duty to showcase how they remain pertinent to create a cohesive, responsible and value-based society in the present right-dominated world. A viable solution to the current real world problems could be found in exploring the philosophy on duties and the book provides relevant literature in this regard. It undertakes jurisprudential analysis of duty in a rights-dominated world, identifying the gaps in realising the potential of duty to address the critical issues of the present times. It argues that enforcement of rights depends heavily on the observance of duties and proposes coherence in right-duty relationship. Gandhian thought on duty recognises duty as a precursor to rights and emphasises that the observance of duties guarantees the enforcement of rights. The relevance of duties and Gandhian thoughts on the same is not restricted to India but transcends borders with profound appeal. Gandhian thoughts have become even more relevant in the current times to examine the situation of COVID-19 pandemic, racial discrimination (BLM), environmental crises, digital divide, health care and medical care crises, refugee and migrant labour problems and it can offer promising solutions based on the nuances of social solidarity, self realisation of duties/responsibilities, local governance, compassion and humanity.

The Royal Institute of Philosophy has been sponsoring conferences in alternate years since 1969. These have from the start been intended to be of interest to persons who are not philosophers by profession. They have mainly focused on interdisciplinary areas such as the philosophies of psychology, education and the social sciences. The volumes arising from these conferences have in cluded discussions between philosophers and distinguished prac titioners of other disciplines relevant to the chosen topic. Beginning with the 1979 conference on 'Law, Morality and Rights' and the 1981 conference on 'Space, Time and Causality' these volumes are now constituted as a series. It is hoped that this series will contribute to advancing philosophical understanding at the frontiers of philosophy and areas of interest to non-philos ophers. It is hoped that it will do so by writing which reduces technicalities as much as the subject-matter permits. In this way the series is intended to demonstrate that philosophy can be clear and worthwhile in itself and at the same time relevant to the interests of lay people."

?'Rethinking?' legal reasoning seems a bold aim given the large amount of literature devoted to this topic. In this thought-provoking book, Geoffrey Samuel proposes a different way of approaching legal reasoning by examining the topic through the context of legal knowledge (epistemology). What is it to have knowledge of legal reasoning? At a more specific level the pursuit of this understanding is conducted through posing a number of questions that are founded on different approaches. What has legal reasoning been? What are the institutional and conceptual legacies of this history? What is the literature and textual heritage? How does it compare with medical reasoning and with reasoning in the humanities? Can it be demystified? In exploring these questions Samuel suggests a number of frameworks that offer some new insights into the nature of legal reasoning. The author also puts forward two key ideas. First, that the legal notion of an '?interest?' might perhaps be a very suitable artefact for rethinking legal reasoning; and, secondly, that fiction theory might be the most viable ?'epistemological attitude?' for understanding, if not rethinking, reasoning in law. This book will be of great interest to academics who are researching legal method and legal reasoning, as well as epistemology of the social sciences and aspects of comparative law. It will also be an insightful text for those interested in legal history and historical perspectives on legal reasoning.

This book traces, assesses and compares the history of conscientious objection - in the cultural context of six common law nations - from refusal of military service and a range of similar moral dilemmas, to objecting to abortion, to the current social polarisation surrounding vaccination hesitancy in the COVID-19 pandemic. It considers the impact of this form of dissent in relation to social movements like Black Lives Matter, social activists such as Gandhi, and whistle blowers like Daniel Ellsberg. It reflects on the relationships between the sacred and the secular, the state and the citizen, in order to better understand the responsibilities of citizenship in our increasingly secular societies. It analyses what defines the conscientiousness of an objection from both legal and ethical standpoints. It examines what constitutes a matter of conscience, why this should justify exemption from civic duties and why this form of dissent has such a time-honoured status. It explores the increased reliance on "grounds of religion, belief or conscience" as providing justification for excusing some citizens from complying with certain responsibilities - mandated by equality and non-discrimination legislation - that are binding for all others. By conducting a comparative evaluation of national law and judicial rulings on a fixed agenda of issues, this book identifies key jurisdictional differences concerning conscientious objection. In so doing, it highlights the importance of cultural context and constructs a jurisdiction-specific overview of legislation, policies and case law. By tracking policy developments and highlighting crucial judicial rulings - particularly in the US - it provides insights into the probable future direction of developments in national law relating to conscientious objection. Lastly, the book draws attention to some of the potential consequences of manifesting dissent by opting out of performing public services - e.g. the possible local breakdown of specific service availability (e.g. abortion, officiating at same-sex marriages, and immunisation); prompting population movements as established democratic civil rights are locally negated (reproductive rights, LGBT rights, right to health protection); fragmenting society into a geographic patchwork of regions in which some citizens are branded as conservative/reactionary and others as progressive; and fuelling the culture wars - with profound implications for a coherent democratic society.

In the study of forms of legal reasoning, logic and argumentation theory long followed separate tracks. Legal logicians' tended to focus on a deductive reconstruction of justifying a decision, disregarding the dialectical process leading to the chosen justification. Others instead emphasized the adversarial and discretionary nature of legal reasoning, involving reasonable evaluation of alternative choices, and the use of analogical reasoning. Recently, however, developments in Artificial Intelligence and Law have paved the way for overcoming this separation. Logic has widened its scope to defensible argumentation, and informal accounts of analogy and dialectics have inspired the construction of computer programs. Thus the prospect is emerging of an integrated logical and dialectical account of legal argument, adding to the understanding of legal reasoning, and providing a formal basis for computer tools that assist and mediate legal debates while leaving room for human initiative. This book presents contributions to this development. From a logical point of view it covers topics such as evaluating conflicting arguments, weighing reasons, modelling legal disputes as a dialogue game, the role of the burden of proof, the relation between principles, rules, reasons and facts, and the relation between deductive and nondeductive arguments. Written by leading scholars in the field and building on recent developments in logic and Artificial Intelligence, the chapters provide a state-of-the-art account of research on the logical aspects of legal argument.

This book centers on a relatively neglected theme in the scholarly literature on Hannah Arendt's political thought: her support for a new form of government in which citizen councils would replace contemporary representative democracy and allow citizens to participate directly in decision-making in the public sphere. The main argument of the book is that the council system, or more broadly the vision of participatory democracy was far more important to Arendt than is commonly understood. Seeking to demonstrate the close links between the council system Arendt advocated and other major themes in her work, the book focuses particularly on her critique of the nation-state and her call for a new international order in which human dignity and "the right to have rights" will be guaranteed; her conception of "the political" and the conditions that can make this experience possible; the relationship between philosophy and politics; and the challenge of political judgement in the modern world.

A focus on reasons for action and practical reason is the perspective chosen by many contemporary legal philosophers for the analysis of some central questions of their discipline. This book offers a critical evaluation of that approach, by carefully examining the empirical, logical and normative problems hidden behind the concepts of reason for action' and practical reasoning'. Unlike most other works in this field, it is a meta-theoretical study which analyses and compares how different theories use the notion of reason in their reconstruction of problems concerning issues such as normativity, the acceptance of norms, or the justification of judicial decisions. This book is directed primarily to scholars specializing in legal theory and concerned with the contribution practical philosophy can make to it, but it also contains important arguments and insights for all those interested in the controversy between legal positivists and their critics, in the theory of human action or in reason-based practical theories in general.

Jeffrie G. Murphy's second collection of essays further pursues the topics of punishment and retribution that were explored in his 1979 collection Retribution, Justice and Therapy. Murphy now explores these topics in the context of political philosophy as well as moral philosophy, and he now begins to develop some doubts about the version of the retributive theory with which his name has long been associated.

Ordoliberalism is a theoretical and cultural tradition of significant societal and political impact in post-war Germany. For a long time the theory was only known outside Germany by a handful of experts, but ordoliberalism has now moved centre stage after the advent of the financial crisis, and has become widely perceived as the ideational source of Germany's crisis politics. In this collection, the contributors engage in a multi-faceted exploration of the conceptual history of ordoliberalism, the premises of its founding fathers in law and economics, its religious underpinnings, the debates over its theoretical assumptions and political commitments, and its formative vision of societal ordering based upon a synthesis of economic theories and legal concepts. The renewal of that vision through the ordoliberal conceptualisation of the European integration project, the challenges of the current European crisis, and the divergent perceptions of ordoliberalism within Germany and by its northern and southern EU neighbours, are a common concern of all these endeavours. They unfold interdisciplinary affinities and misunderstandings, cultural predispositions and prejudices, and political preferences and cleavages. By examining European traditions through the lens of ordoliberalism, the book illustrates the diversity of European economic cultures, and the difficulty of transnational political exchanges, in a time of European crisis.

The primary aim of this book is to provide clear and reliable information on a number of central topics in comparative law. At a time when global society is increasingly mobile and legal life is internationalized, the role of comparative law is gaining importance. While the growing interest in this field may well be attributed to the dramatic increase in international legal transactions, this empirical parameter is only part of the explanation. The other part, and (at least) equally important, has to do with the expectation of gaining a deeper understanding of law as a social phenomenon and a fresh insight into the current state and future direction of one's own legal system. In response to the internationalization of legal practice and theory, law schools around the world have expanded their comparative law programs. Within the legal subjects that form the core of the curriculum there is a greater interest in comparative legal analysis, as well as greater attention to how global developments and international actors and institutions affect domestic law. Transnational legal education based on comparative reasoning is intended to help shape a new generation of lawyers, public servants and other professionals who recognize and respect cultural diversity in an interconnected world. The central topics discussed in this book include: the nature and scope of comparative legal inquiries; the relationship of comparative law to other fields of legal study; the aims and uses of comparative law; the origins and historical development of comparative law; and the evolution and defining features of some of the world's predominant legal traditions. It also deals with selected theoretical aspects, such as the problem of comparability of legal events; the classification of legal systems into families of law; and the topics of legal transplants, harmonization and convergence of laws. Chiefly intended for students, the book also discusses a number of fundamental issues concerning the development of comparative law, and devotes certain sections to reviewing the salient features of the relevant literature on definitional, terminological, methodological and historical issues.

This edited collection considers the work of one of the most important legal philosophers of our time, Professor Gerald J Postema. It includes contributions from expert philosophers of law. The chapters dig deep into important camps of Postema's rich theoretical project including: - the value of the rule of law; - the ideal of integrity in adjudication; - his works on analogical reasoning; - the methodology of jurisprudence; - dialogues with Ronald Dworkin, Joseph Raz, Frederick Schauer and HLA Hart. The collection includes an original article by Professor Postema, in which he develops his conception of the rule of law and replies to some objections to previous works, and an interview in which he provides a fascinating and unique insight into his philosophy of law.

Of the Limits of the Penal Branch of Jurisprudence, written in 1780-2, is the continuation of An Introduction to the Principles of Morals and Legislation, and thus part of the introduction to the projected penal code on which Bentham worked in the late 1770s and early 1780s. The work emerged from Bentham's attempt to distinguish between civil and penal law, which led him into an exposition of the nature and scope of an individual law and an analysis of such key legal terms as power, duty, right, property, contract, and conveyance. Bentham addresses the relationship between different 'aspects' of the legislator's will, such as command, prohibition, and permission, and in so doing develops a 'logic of the will' which anticipates modern deontic logic. He explains that the disposition of the people to obey constitutes the basis of political and legal power, and distinguishes between law addressed to the sovereign and law addressed to the people. Dealing with some of the most fundamental problems in jurisprudence and the theory of human action, Of the Limits of the Penal Branch of Jurisprudence is a work of outstanding originality and seminal importance in the field of legal philosophy. The volume contains an Editorial Introduction which explains the provenance of the text, and the method of presentation. The text is fully annotated with textual and historical notes, and the volume is completed with detailed subject and name indices. This edition of Of the Limits of the Penal Branch of Jurisprudence supersedes Of Laws in General, edited by H.L.A. Hart and published by the Athlone Press in 1970, as a volume in The Collected Works of Jeremy Bentham.

This book discusses the relation between morality and politics, and morality and law, a field that has been studied for more than two thousand years The law is a part of human culture, and this touches upon a dynamic reality that is connected to the relation between nature and freedom, nature and culture. If such relations are not clearly understood, as is the case today, the relation between morality and law cannot be properly comprehended either. The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. And since the relationship involves criminal law, legal philosophy and legal history, interdisciplinary approaches are always needed. Featuring fifteen original contributions by legal scholars from various European and American universities, the book does not pretend to solve the complexity of the relation between morality and criminal law, but instead expresses criticism, offers some proposals and stimulates further thought. The book tackles the topic from an interdisciplinary perspective (criminal law, constitutional law, legal philosophy and legal history, among others). As such, it appeals not only to scholars and students, but also to lawyers, policymakers, historians, theologians, philosophers and general readers who are interested in the legal, social, political and philosophical issues of our time.

This book explores the historical foundations of holding public authorities accountable for their acts, and discusses how and why the idea that the state should or should not be held liable became established in three significant jurisdictions. The issue of state liability for legislative acts is considered one of the most difficult and controversial problems in jurisprudence. This book analyses the development of concepts and institutions of liability for the acts of legislator pertaining to the general principles of state liability until the mid-20th century in the leading European legal systems: Germany, France and Great Britain. It is shown that, in contrast to the prevailing conviction, the lack of liability for law-making instruments was not an unassailable dogma, and that questions as to whether such liability was possible were being asked from the Middle Ages onwards. The book will be a valuable resource for academics and researchers in the areas of Constitutional Law, Public Law, History of Law, History of Legal and Political Thought, Philosophy of Law, and Comparative Legal Studies.

This book develops an original theory of decision-making based on the concept of plausibility. The author advocates plausible reasoning as a general philosophical method and demonstrates how it can be applied to problems in argumentation theory, scientific theory choice, risk management, ethics, law, economics, and epistemology. Human decisions are conditioned by formidable uncertainty. The standard resource for dealing rationally with uncertainty is the mathematical concept of probability. The probability calculus is well-known, but since the numerical demands for applying it cannot usually be met, it is not widely applicable. By contrast, the concept of plausibility is widely applicable, but it is little known. This book relies on a generalized concept of plausibility whose strength is its adaptability. The adaptability is due to a novel form of decision theory that takes plausibilities as inputs. This form of decision theory remains applicable to decisions informed by sharp probabilities and utilities, but it can also be applied to decisions that must be made without them. It can aid in the rationally critical enterprise of discriminating good arguments from bad, and this can foster philosophical progress. A Plea for Plausibility will be of interest to scholars and advanced students working in argumentation theory, philosophy of science, ethics, epistemology, economics, law, and risk management.

This book compares the respective concepts of the law of nations put forward by the Spanish theologian Francisco Suarez and by the Dutch jurist Hugo Grotius. This comparison is based on the fact that both thinkers developed quite similar notions and were the first to depart from the Roman conception, which persisted throughout the entire Middle Ages and the early Renaissance. In Rome, jus gentium was a law that applied to foreigners within the Empire, and one which was often mistaken for Natural Law itself. These two features can be found even in the works of writers such as Francisco de Vitoria and Alberico Gentili. In Suarez and Grotius, the law of nations is applicable to an extra-national domain and inarguably becomes positive law. Yet, it also contains an ethical element that prevents it from transforming into a mere reflection of state interests. This work argues that this resemblance is hardly a coincidence: Grotius has read Suarez, and that influence has modified the foundations of his early thoughts on jus gentium. This should not be taken to imply that the Dutch jurist wasn't original: in both authors, the definition of the law of nations pursues his own internal logic. Nevertheless, Suarez's oeuvre allowed Grotius to solve a fundamental problem touched on in his early writings that had remained unanswered. Accordingly, his oeuvre promises to clarify one of the most significant moments in the History of International Law.

Addresses the relationship between law and the visual and the importance of photography in show trials. Includes case studies from Albania, East Germany, and Poland. Will appeal to legal and cultural theorists.

Can private law assume an ecological meaning? Can property and contract defend nature? Is tort law an adequate tool for paying environmental damages to future generations? This book explores potential resolutions to these questions, analyzing the evolution of legal thinking in relation to the topics of legal personality, property, contract and tort. In this forward thinking book, Mattei and Quarta suggest a list of basic principles upon which a new, ecological legal system could be based. Taking private law to represent an ally in the defence of our future, they offer a clear characterization of the fundamental legal institutions of common law and civil law, considering the challenges of the Anthropogenic era, technological tools of the Internet era, and the global rise of the commons. Summarizing the fundamental institutions of private law: property rights, legal personality, contract, and tort, the authors reveal the limits of these legal institutions in relation to historical international evolution and their regulation in the contexts of catastrophic ecological issues and technological developments. Engaging and thoughtful, this book will be interesting reading for legal scholars and academics of private law and, in particular, those wishing to understand the role of law when facing technological and ecological challenges.

This book offers an original account of a distinctly republican theory of social and global justice. The book starts by exploring the nature and value of Hegelian recognition theory. It shows the importance of that theory for grounding a normative account of free and autonomous agency. It is this normative account of free agency which provides the groundwork for a republican conception of social and global justice, based on the core-ideas of freedom as non-domination and autonomy as non-alienation. As the author argues, republicans should endorse a sufficientarian account of social justice, which focuses on the nature of social relationships and their effects on people's ability to act freely and realize their fundamental interests. On the global level, the book argues for the cosmopolitan extension of the republican principles of non-domination and non-alienation within a multi-level democratic system. In so doing, the book addresses a major gap in the existing literature, presenting an original theory of justice, which combines Hegelian recognition theory and republican ideas of freedom, and applying this hybrid theory to the global domain."

Routledge Q&As give you the tools to practice and refine your exam technique, showing you how to apply your knowledge to maximum effect in assessment. Each book contains essay and problem-based questions on the most commonly examined topics, complete with expert guidance and model answers that help you to: Plan your revision and know what examiners are looking for: Introducing how best to approach revision in each subject Identifying and explaining the main elements of each question, and providing marker annotation to show how examiners will read your answer Understand and remember the law: Using memorable diagram overviews for each answer to demonstrate how the law fits together and how best to structure your answer Gain marks and understand areas of debate: Providing revision tips and advice to help you aim higher in essays and exams Highlighting areas that are contentious and on which you will need to form an opinion Avoid common errors: Identifying common pitfalls students encounter in class and in assessment The series is supported by an online resource that allows you to test your progress during the run-up to exams. Features include: multiple choice questions, bonus Q&As and podcasts.