PRAISE FOR THE BOOK "Despite the existing scholarly literature on criminal defences, many issues remain contested or unresolved. Dr Dsouza offers a thorough and scholarly treatment of a complex topic which can be expected to become a point of reference for future work in the field." Professor James Chalmers, University of Glasgow "Mark Dsouza has produced an engaging, incisive and cogently argued monograph, that makes an original contribution to criminal law theory. Required reading for scholars and graduate students working on criminal law defences." Professor Paul Roberts, University of Nottingham Although it is often accepted that rationale-based defences to criminal liability can be justificatory or excusatory, disagreements about how best to conceptualise the categories of justification and excuse have appeared so interminable that some theorists argue that they should be abandoned altogether. This book offers a novel, principled, and intuitively appealing conceptual account of the natures of justifications and excuses, showing how they differ, and why the distinction between them matters. The monograph breaks new ground by defending a model of rationale-based defences that turns solely on the quality of the defendant's reasoning. This model is shown to generate appealing liability outcomes, advance convincing solutions to questions that have puzzled criminal lawyers for years, and offer suggestions for doctrinal reform that are both normatively sound, and practical. By proposing new ways to think about defences, this book makes an original contribution to criminal law theory that will be of benefit to academics, practitioners, and persons interested in law reform.

A new edition of F. A. Hayek’s three-part opus Law, Legislation, and Liberty, collated in a single volume In this critical entry in the Collected Works of F. A. Hayek series, political philosopher Jeremy Shearmur collates Hayek’s three-part study of law and liberty and places Hayek’s writings in careful historical context. Incisive and unrestrained, Law, Legislation, and Liberty is Hayek at his late-life best, making it essential reading for understanding the philosopher’s politics and worldview. These three volumes constitute a scaling up of the framework offered in Hayek’s famed The Road to Serfdom. Volume 1, Rules and Order, espouses the virtues of classical liberalism; Volume 2, The Mirage of Social Justice, examines the societal forces that undermine liberalism and, with it, liberalism’s capacity to induce "spontaneous order"; and Volume 3, The Political Order of a Free People, proposes alternatives and interventions against emerging anti-liberal movements, including a rule of law that resides in stasis with personal freedom. Shearmur’s treatment of this challenging work—including an immersive new introduction, a conversion of Hayek’s copious endnotes to footnotes, corrections to Hayek’s references and quotations, and the provision of translations to material that Hayek cited only in languages other than English—lends it new importance and accessibility. Rendered anew for the next generations of scholars, this revision of Hayek’s Law, Legislation, and Liberty is sure to become the standard.

A philosophical system is not what one would expect to find in the work of a contemporary legal thinker. Robert Alexy's work counts as a striking exception. Over the past 28 years Alexy has been developing, with remarkable clarity and consistency, a systematic philosophy covering most of the key areas of legal philosophy. Kantian in its inspiration, his work admirably combines the rigour of analytical philosophy with a repertoire of humanitarian ideals reflecting the tradition of the Geisteswissenschaften, rendering it one of the most far-reaching and influential legal philosophies in our time. This volume has been designed with two foci in mind: the first is to reflect the breadth of Alexy's philosophical system, as well as the varieties of jurisprudential and philosophical scholarship in the last three decades on which his work has had an impact. The second objective is to provide for a critical exchange between Alexy and a number of specialists in the field, with an eye to identifying new areas of inquiry and offering a new impetus to the discourse theory of law. To that extent, it was thought that a critical exchange such as the one undertaken here would most appropriately reflect the discursive and critical character of Robert Alexy's work. The volume is divided into four parts, each dealing with a key area of Alexy's contribution. A final section brings together concise answers by Robert Alexy. In composing these, Alexy has tried to focus on points and criticisms that address new aspects of discourse theory or otherwise point the way to future developments and applications. With its range of topics of coverage, the number of specialists it engages and the originality of the answers it provides, this collection will become a standard work of reference for anyone working in legal theory in general and the discourse theory of law in particular.

This book analyses the phenomenon of digitally mediated property and considers how it problematises the boundary between human and nonhuman actors. The book addresses the increasingly porous border between personhood and property in digitized settings and considers how the increased commodification of knowledge makes visible a rupture in the liberal concept of the property owning, free, person. Engaging with the latest work in posthumanist and new materialist theory, it shows, how property as a concept as well as a means for control, changes fundamentally under advanced capitalism. Such change is exemplified by the way in which data, as an object of commodification, is extracted from human activities yet is also directly used to affectively control - or nudge - humans. Taking up a range of human engagements with digital platforms and coded architectures, as well as the circulation of affects through practices of artificial intelligence that are employed to shape behaviour, the book argues that property now needs to be understood according to an ecology of human as well as nonhuman actors. The idea of posthuman property, then, offers both a means to critique property control through digital technologies, as well as to move beyond the notion of the self-owning, object-owning, human. Engaging the most challenging contemporary technological developments, this book will appeal to researchers in the areas of Law and Technology, Legal Theory, Intellectual Property Law, Legal Philosophy, Sociology of Law, Sociology, and Media Studies.

This book features new perspectives on the ethics and politics of free speech. Contributors draw on insights from philosophy, psychology, political theory, journalism, literature, and history to respond to pressing problems involving free speech in liberal societies.

This book reassesses the relationship between human dignity, law, and specifically the 'personalist' school of agency. The work argues that a specific way of appreciating dignity is contained in how law understands the person, and so can be used to improve upon how we explain and interpret the law. Despite considerable differences between jurisdictions as regards human dignity in application, it is argued that the particular weight of human persons is the widely shared focal point. The central claim, therefore, is that the law recognises, and tries to foster, the status of personhood, and, drawing on the work of Karol Wojtyla, the author develops a 'Status of Personhood Theory'. The book will be of interest to academics and researchers working in the areas of Legal Philosophy, Jurisprudence, Philosophy, Ethics and Political Theory.

This book examines ethics at the intersection of law and justice. If law and justice are concerned with collectively establishing the general terms on which the plurality called "we" share the earth as social beings, then ethics concerns the individual Self's particular moral relationship with the Other. Law, the acknowledged offspring of politics, represents the kind of might that most people accept as legitimate, at least most of the time. Justice, on the other hand, is supposed to vigilantly stand guard over law: to protect us against its biases and excesses, or, at the very least, to rise up and reproach the law whenever it permits or encourages injustice. But what if the belief that a particular legally-authorized state of affairs is "just" - a common enough feeling, especially amongst the privileged - or even "unjust" and in need of correction, were itself in need of a vigilant guardian? This book argues that ethics can and should stand guard over whatever image of justice and/or just law one happens to believe in. The book thus attempts to steer a perilous course between two looming moral hazards: ethics interpreted as the rational production of ethically correct behavior (as in Kant) and ethics interpreted as the spontaneous eruption of pre-rational compassion for the suffering of the Other, come what may (as in Levinas). In the end, the book characterizes ethical life in the law as the more-or-less constant experience of the paradoxical nature of this choice - a feeling of inescapable personal responsibility for the fate of the Other. Based on the author's well-established expertise in the area, this book will appeal to students, scholars and others with interests in legal theory and moral and political philosophy.

Focusing on John Milton's Paradise Lost , this book investigates the metaphorical identification of nature with a court of law - an old and persistent trope, haunted by ancient aporias, at the intersection of jurisprudence, philosophy and literature. In an enormous variety of texts, from the Greek beginnings of Western literature onward, nature has been described as a courtroom in which an all- encompassing trial takes place and a universal verdict is executed. The first, introductory part of this study sketches an overview of the metaphor's development in European history, from antiquity to the seventeenth century. In its second, more extensive part, the book concentrates on Milton's epic Paradise Lost in which the problem of the natural law court finds one of its most fascinating and detailed articulations. Using conceptual tools provided by Hannah Arendt, Walter Benjamin, Hans Blumenberg, Gilles Deleuze, William Empson and Alfred North Whitehead, the study demonstrates that the conflicts in Milton's epic revolve around the tension between a universal legal procedure inherent in nature and the positive legal decrees of the deity. The divine rule is found to consolidate itself by Nature's supplementary shadow government; their inconsistencies are not flaws, but rather fundamental rhetorical assets, supporting a law that is inherently "double- formed". In Milton's world, human beings are thus confronted with a twofold law that entraps them in its endlessly proliferating double binds, whether they obey or not. The analysis of this strange juridical structure can open up new perspectives on Milton's epic, as well as on the way legal discourse tends to entangle norms with facts and thus to embed itself in human life. This original and intriguing book will appeal not only to those engaged in the study of Milton, but also to anyone interested in the relationship between law, history, literature and philosophy.

This is the first book to comprehensively analyze the work of Hans Micklitz, one of the leading scholars in the field of EU economic law. It brings together analysts, academic friends and critics of Hans Micklitz and results in a unique collection of essays that evaluate his work on European Economic Law and Regulation. The contributions discuss a wide range of Micklitz' work: from his theoretical work on private law beyond party autonomy, with a special focus on its regulatory function, to the illustration of how his work has built the basis for current solutions such as used in solving the financial crisis. The book is divided into sections covering foundations of private law, regulatory law, competition and intellectual property law, product safety law, consumer contract law and the enforcement of law. This book clearly shows the enormous impact of Hans Micklitz' work on the EU legal system in both scholarship and practice.

Addressing the influential analysis of law and literature, this book offers a new perspective on their relationship. The law and literature movement that has gained global prominence in the course of last decades of the twentieth and the first decades of the twenty-first centuries has provided the research and teaching of law with a considerable body of new and valuable knowledge and understanding. Most of the knowledge and insights generated by the movement concern either a thematic overlap between legal and literary discourses - suggesting they deal with the same moral concerns - or a rhetorical, semiotic or general linguistic comparability or 'sameness' between them - imputing to both the same or very similar narrative structures. The Literary Exception and the Rule of Law recognises the wealth of knowledge generated by this approach to the relationship between law and literature, and acknowledges its debt to this genre of scholarship. It nevertheless also proposes, on the basis of a number of revealing phenomenological inquiries, a different approach to law and literary studies: one that emphasises the irreducible difference between law and literature. It does so with the firm believe that a regard for the very different and indeed opposite discursive trajectories of legal and literary language allows for a more profound understanding of the unique and indeed separate roles that the discourses of law and literature generally play in the sustenance of relatively stable legal cultures. This important rethinking of the relationship between law and literature will appeal to scholars and students of legal theory, jurisprudence, philosophy, politics and literary theory.

1. This book has a market across criminology and criminal justice, sociology and law. 2. While there is a healthy market for books on the death penalty, there is a gap for a book that offers a rigorous theoretical approach to making sense of the data. 3. While many studies have focused specifically on racial bias, this book considers a range of social characteristics and their impact on sentencing, including class, moral reputation and organizational status.

The Truth and Reconciliation Commission (TRC), established in South Africa after the collapse of apartheid, was the bold creation of a people committed to the task of rebuilding a nation and establishing a society founded upon justice, equality and respect for the rule of law. As part of its historic, cathartic mission, the TRC held a special hearing, calling to account the lawyers - judges, academics and members of the bar - who had been crucial participants in the apartheid legal order. This book is an account of those hearings, and an attempt to evaluate, in the light of the theories of adjudication, the historical role of the judiciary and bar in the apartheid years. It argues, often in the words of those who testified, how the judges failed in their duty to uphold the rule of law. For the most part, the lawyers of apartheid are found to have deserted its victims.;The few notable exceptions both illustrate the potential for lawyers to have done more and lay the basis for the respect the rule of law still enjoys in South Africa despite apartheid. Yet, the author argues, many continue to commit a more serious "crime". Failing to confront the past, and in many cases refusing even to attend TRC hearings, the lawyers who could have helped to resist the worst excesses of apartheid remain accomplices to its evil deeds. This book offers us the spectacle of an entire legal system on trial. The echoes from this process are captured here in a way that will appeal to all readers - lawyers and non-lawyers alike - interested in the relationship between law and justice, as it is exposed during a period of transition to democracy.

Why does a hospital need an ethics consultation? And what about this counselling is ethical? The book explains the background of the development of clinical ethics counselling. It provides new insights into serious decision-making conflicts in everyday clinical life and uncovers the disputes that followed in public. In the search for the ethical understanding of clinical ethics counselling, the book comes across previously unexplored evidence. Step by step, a system is reconstructed that reveals the shape of a significant philosophical school of thought.

A collection of essays discussing Herbert Hart's writings on responsibility. The essays focus upon Hart's work on causation in the law and on the justification of punishment. Specific topics discussed include senses of 'responsibility', voluntariness, Mill's harm principle, mens rea, excuses, the Hart-Wootton debate, and negligence.

This book radically rethinks the philosophical basis of copyright in the arts. The author reflects on the ontology of art to argue that current copyright laws cannot be justified. The book begins by identifying two problems that result from current copyright laws: (1) creativity is restricted and (2) they primarily serve the interests of large corporations over those of the artists and general public. Against this background, the author presents an account of the ontology of artworks and explains what metaphysics can tell us about ownership in the arts. Next, he makes a moral argument that copyright terms should be shorter and that corporations should not own copyrights. The remaining chapters tackle questions regarding the appropriation of tokens of artworks, pattern types, and artistic elements. The result is a sweeping reinterpretation of copyright in the arts that rests on sound ontological and moral foundations. Radically Rethinking Copyright in the Arts will be of interest to scholars and advanced students working in aesthetics and philosophy of art, metaphysics, philosophy of law, and intellectual property law.

This book examines selected high-profile U.S. First Amendment cases occurring during the Trump era as a vehicle for exploring a possible fundamental commonality in understanding the democratic rule of law globally. In each of these cases, the adjudicating body's analytical legal strategy is discussed in terms of how it reinforces or detracts from the democratic rule of law. It was and continues to be highly internationally anticipated as to what legal examples are being set by this established democracy when confronted by legal contests between the former Trump administration and those alleging their rights were somehow violated by the executive of that time. Thus, the book is instructive for an international audience on the essential role of the courts in protecting democracy through providing, where supported by the law and the facts, a remedy for the aggrieved comparatively powerless. The book will be essential reading for academics and researchers working in the areas of constitutional law, politics and human rights.

This book argues that citizens have a moral right to decide by which criteria they grant migrants citizenship, as well as to control access to their territory in the first place. In developing and defending this argument, it critically engages numerous objections, thus providing the reader with a thorough overview of the current debate on the ethics of immigration and exclusion. The author's argument is based on a straightforwardly individualist and liberal starting point. One of the rights granted by liberalism is freedom of association, which also comprises the right not to associate with people with whom one does not want to associate. While this is an individual right, it can be exercised collectively like many other individual rights. Thus, people can decide to collectively organize into an association pursuing certain goals; and subject to certain provisos, this gives rise to legitimate claims to space and territory in which they pursue these goals. The author shows that this right is far-reaching and robust, which entails an equally far-reaching and robust right to exclude. Moreover, he demonstrates that large-scale immigration from illiberal cultures tends to severely compromise the way of life, the values, and the institutions of liberal democracies in ways routinely ignored by apologists for multiculturalism. Freedom, Culture, and the Right to Exclude will be of interest to scholars and advanced students working in applied ethics, political philosophy, political theory, and law.

This book explores the application of concepts of fiduciary duty or public trust in responding to the policy and governance challenges posed by policy problems that extend over multiple terms of government or even, as in the case of climate change, human generations. The volume brings together a range of perspectives including leading international thinkers on questions of fiduciary duty and public trust, Australia's most prominent judicial advocate for the application of fiduciary duty, top law scholars from several major universities, expert commentary from an influential climate policy think-tank and the views of long-serving highly respected past and present parliamentarians. The book presents a detailed examination of the nature and extent of fiduciary duty, looking at the example of Australia and having regard to developments in comparable jurisdictions. It identifies principles that could improve the accountability of political actors for their responses to major problems that may extend over multiple electoral cycles.

This handbook advances the interdisciplinary field of Philosophy, Politics, and Economics (PPE) by identifying thirty-five topics of ongoing research. Instead of focusing on historically significant texts, it features experts talking about current debates. Individually, each chapter provides a resource for new research. Together, the chapters provide a thorough introduction to contemporary work in PPE, which makes it an ideal reader for a senior-year course. The handbook is organized into seven parts, each with its own introduction and five chapters: I. Frameworks II. Decision-Making III. Social Structures IV. Markets V. Economic Systems VI. Distributive Justice VII. Democracy The "Frameworks" part discusses common tools and perspectives in PPE, and the "Decision-making" section shows different approaches to the study of choice. From there, parts on "Social Structures," "Markets" and "Economic Systems" each use tools from the three PPE disciplines to study and distinguish parts of society. The next part explains dominant theories and challenges to the paradigm of "Distributive Justice." Finally, a part on "Democracy" offers five challenges to current democratic practice.

In this new and burgeoning field in legal and human rights thought, this edited collection explores, by reference to applied philosophy and case law, how the European Court of Human Rights (ECtHR) has developed and presented a right to personal identity, largely through interpretation of Article 8 of the European Convention on Human Rights. Divided into three parts, the collection interrogates: firstly, the construction of personal identity rights at the ECtHR; secondly, whose identity rights are protected; and thirdly, the limits of identity rights. The collection is the first in the Routledge Studies in Law and Humanity series. Contributions from nine leading and emerging legal scholars from the UK, Ireland and continental Europe explore how the right has developed, rights to identity and marriage, LGBTI+, persons with disabilities, religious and cultural issues and critical perspectives on the social construction and framing of the right. The collection is primarily aimed at scholars and advanced students, particularly of human rights law and its theory, Jurisprudence and Philosophy of Law, and those interested in ECtHR jurisprudence, and those interested in the connection between theories of inclusion, belonging and rights, including human rights lawyers.

Based on the Judicial Transparency Index Assessment (2019 and 2020) conducted in China by the Institute of Law of the Chinese Academy of Social Sciences, this book summarizes and analyzes the current situation of judicial openness in China, using a sample of 218 courts across the country for the study. The book analyzes the ideological and institutional origins of judicial openness and examines the operation of judicial openness through the practical experience of role replacement. By analyzing evaluation data in the fields of audit information disclosure, trial information disclosure, judicial enforcement data disclosure, and judicial reform data disclosure, the book points out that the current judicial disclosure has made significant progress, but there are still problems such as unclear disclosure standards, insufficient rigidity in disclosure requirements, and the scope of disclosure still needs to be expanded. The book recommends accelerating the disclosure of judicial legislation, public standards, and strengthening assessment and accountability.

Bringing together world-class scholars who have devoted themselves to the study of legal obligation, this book addresses key dimensions of the current debate: providing novel insights and perspectives, as well as critically discussing the leading theories of legal obligation. The notion of legal obligation is widely regarded as fundamental by both legal practitioners and legal theorists. For the language that explicitly refers to obligation is pervasive insofar as paradigmatic legal materials make reference to obligation either directly, by specifying what a subject is obligated to do, or indirectly, by attributing rights, privileges, powers, permissions, and other normative statuses to both single individuals and groups. There is, then, broad agreement that obligation constitutes a central element in legal studies. At the same time, however, there is considerable disagreement among contemporary legal theorists about how legal obligation can or should be elucidated. This book accounts for both the significance of obligation in law and the variety of views of legal obligation championed in legal philosophy today. With contributions from renowned theorists, this book will be invaluable for scholars and students of legal theory, legal philosophy, and jurisprudence.

This book takes up Paul Ricoeur's relational idea of the self in order to rethink the basis of human rights. Many schools of critical theory argue that the idea of human rights is based on a problematic conception of the human subject and the legal person. For liberals, the human is a possessive and self-interested individual, such that others are either tools or hurdles in their projects. This book offers a novel reading of subjectivity and rights based on Paul Ricoeur's re-interpretation of human subjectivity as a relational concept. Taking up Ricoeur's idea of recognition as a 'reciprocal gift', it argues that gift exchange is the relation upon which authentic, non-abstract, human subjectivity is based. Seen in this context, human rights can be understood as tokens of mutual recognition, securing a genuinely human life for all. The conception of human rights as gift effectively counters their moral individualism and possessiveness, as the philosophical anthropology of an isolated ego is replaced by that of a related, dependent and embedded self. This original reinterpretation of human rights will appeal to scholars of legal theory, jurisprudence, politics and philosophy.

The monograph discusses the problem of aerial terrorism, one of the biggest challenges humanity faces in the 21st century. Its main goal is to answer the question of whether international legal regulations serve as an effective tool in the fight against terrorists who target civil aviation. The book itself is divided into three chapters: the first one focuses on the theoretical aspect by describing the term “aerial terrorism” itself from a legal perspective. The second one is an in-depth overview of key legal instruments drafted under the auspices of ICAO, the United Nations, and the European Union, that together form a juridical core for the fight against air terrorists. Finally, the third is a case study that depicts how the mechanisms described in the previous parts function in practice.

This volume showcases emerging interdisciplinary scholarship that captures the complex ways in which biological knowledge is testing the nature and structure of legal personhood. Key questions include: What do the new biosciences do to our social, cultural, and legal conceptions of personhood? How does our legal apparatus incorporate new legitimations from the emerging biosciences into its knowledge system? And what kind of ethical, socio-political, and scientific consequences are attached to the establishment of such new legalities? The book examines these problems by looking at materialities, the posthuman, and the relational in the (un)making of legalities. Themes and topics include postgenomic research, gene editing, neuroscience, epigenetics, precision medicine, regenerative medicine, reproductive technologies, border technologies, and theoretical debates in legal theory on the relationship between persons, property, and rights.