The processes of economic integration induced by globalization have brought about a certain type of legal practice that challenges the core values of legal ethics. Law firms seeking to represent the interests of internationally active corporate clients must embrace and systematically apply concepts of strategic management and planning and install corporate business structures to sustain competition for lucrative clients. These measures bear a high conflict potential with the core values of legal ethics. However, we observe in parallel a global (...) consolidation of these core values through an enhanced cooperation of national professional bodies, the use of international codes, and comparative legal ethics teaching and research. Furthermore, state regulation of the legal profession is concerned with preserving the core values of legal ethics to conserve the lawyer's role in upholding the rule of law. This article defends that legal ethics is adapting to the pressures exerted by "managerial" approaches to legal practice without this altering core values that underlie legal ethics. (shrink)
Global Prescriptions scrutinizes the movement to export a U.S.-oriented version of the " rule of law," found in the activities of philanthropic foundations, the World Bank, the U.S. Agency for International Development, and several other developmental organizations. Yves Dezalay and Bryant G. Garth have brought together a group of scholars from a variety of disciplines--anthropology, economics, history, law, political science, and sociology--to create tools for understanding this movement. Comprised of two sections, the volume first develops theoretical perspectives key to an (...) understanding of the production and impact of new "global legal prescriptions." The second part shifts attention to the national importation of these legal orthodoxies. The scholars provide a diverse set of sophisticated approaches, both to the circumstances promoting the production of these prescriptions and to the limitations of the prescriptions in the different national settings. Thus, Global Prescriptions provides a unique treatment for readers interested in globalization generally or the potential spread of the "rule of law" in particular. This volume will intrigue scholars and students interested in a political science, economics, history, anthropology, law, and sociology. Contributors are Jeremy Adelman, Robert Boyer, Elizabeth Heger Boyle, Miguel Angel Centeno, Heinz Klug, Larissa Adler Lomnitz, John W. Meyer, Setsuo Miyazawa, Hiroshi Otsuka, Rodrigo Salazar, Kathryn Sikkink, Anne-Marie Slaughter, and Catalina Smulovitz. Yves Dezalay is Director of Research, National Center for Scientific Research, Paris. Bryant G. Garth is Director of the American Bar Foundation. (shrink)
This volume reflects the results of a symposium held at Tillar House, the ASIL headquarters in Washington, DC, in November 2008 which brought together philosophers, legal scholars, and economists to discuss the problems of understanding ...
This book explores how globalisation influences the understanding of law. Adopting a broad concept of law and a global perspective, it critically reviews mainstream Western traditions of academic law and legal theory. Its central thesis is that most processes of so-called 'globalisation' take place at sub-global levels and that a healthy cosmopolitan discipline of law should encompass all levels of social relations and the legal ordering of these relations. It illustrates how the mainstream Western canon of jurisprudence needs to be (...) critically reviewed and extended to take account of other legal traditions and cultures. Written by the one of the foremost scholars in the field, this important work presents an exciting alternative vision of jurisprudence. It challenges the traditional canon of legal theorists and guides the reader through a field undergoing seismic changes in the era of globalisation. This is essential reading for all students of jurisprudence and legal theory. (shrink)
This is an unprecedented volume that brings together J. Hillis Miller, Julia Kristeva, Slavoj Zizek, Ernesto Laclau, Alain Badiou, Nancy Fraser, and other prominent intellectuals from five countries in seven disciplines to provide fresh perspectives on the new configurations of law, justice, and power in the global age. The work engages and challenges past and present scholarship on current topics in legal studies: globalization, post-colonialism, multiculturalism, ethics, post-structuralism, and psychoanalysis. The book is divided into five parts. The first debates (...) issues of (trans-)national justice and human rights in the global age, focusing on military interventions and refugee policies. Part II traces the globalization of Western law back to colonialism, addressing the rising importance of multiculturalism, gender studies, and the quotidian in legal studies. Part III examines legal pluralism. Part IV turns from the empirical “other” of legal pluralism to the concrete “Other” in Continental ethics and philosophy. The book then traces this recent ethical turn in legal theory back to the challenges of poststructuralism in Part V. The volume concludes with a psychoanalytic rethinking of justice for the new millennium that is based on love, forgiveness, and promise—a justice that, in Lacanian terms, operates outside the “limits” of the law. (shrink)
Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (...) virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances. (shrink)
Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : civil disobedience (...) -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism. (shrink)
In the past twenty years Joseph Raz has consolidated his reputation as one of the most acute, inventive, and energetic scholars currently at work in analytic moral and political theory. This new collection of essays forms a representative selection of his most significant contributions to a number of important debates, including the extent of political duty and obligation, and the issue of self-determination. He also examines aspects of the common (and ancient) theme of the relations between law and morality. This (...) volume of essays, available in one volume for the first time, will be essential to legal philosophers and political theorists. (shrink)
The seven original essays included in this volume, written by some of the world's most distinguished moral and legal philosophers, offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. One of the key issues explored is that of the alleged 'domain-specificity' of conceptions of objectivity, i.e. whether there is (...) a conception of objectivity appropriate for ethics that is different in kind from the conception of objectivity appropriate for other areas of study. This is the first volume to consider the intersection between objectivity in ethics and objectivity in law. It presents a state-of-the-art survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication. (shrink)
Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. This objective book views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not (...) to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accomodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greenawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike. (shrink)
This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort, and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third, and fourth sections present, in turn, more detailed explorations of the roles of notions of liability and responsibility in (...) contracts, torts, and punishment. The collection not only presents some of the most challenging work being done in legal philosophy today, it also demonstrates the interdisciplinary character of the field of philosophy of law, with contributors taking into account recent developments in economics, political science, and rational choice theory. This thought-provoking volume will help to shed light on the underexplored ground that lies between law and morals. (shrink)
As one of the most massive and successful business sectors, the pharmaceutical industry is a potent force for good in the community, yet its behaviour is frequently questioned: could it serve society at large better than it has done in the recent past? Its own internal ethics, both in business and science, may need a careful reappraisal, as may the extent to which the law - administrative, civil and criminal - succeeds in guiding (and where neccessary contraining) it. The rules (...) of behavior that may be considered to apply to today's pharmaceutical industry have emerged over a very long period and the process goes on. Even the immensely detailed standards for quality, safety and efficacy laid down in drug law and regulation during the second half of the twentieth century have their limitations as tools for ensuring that the public interest is well served. In particular, national and regional regulatory agencies are heavily dependent on industrial data for their decision-making, their standards and competence vary, and even the existing network of agencies does not cover the entire world. What is more there are many areas of law and regulation affecting the industry, concerning for example the pricing of medicines, the conduct of clinical studies, the health protection of workers and concern for the environment. In some fields it is indeed hardly possible to maintain standards through regulation. Professor N.M. Graham Dukes, a physician and lawyer with long term experience in industrial research management, academic study and international drug policy, provides here a powerfully documented analysis into the way this industry thinks, acts, and is viewed, and examines the current trends pointing to change. *Provides a balanced picture of the current role of the pharmaceutical industry in society *Includes indices of conventions, laws, and regulations; as well as judicial and disciplinary cases *This is the only book addressing the legal implications of big pharma activities and ethical standards. (shrink)
Incentives and reasons -- Values and human nature -- Right and wrong -- Questions of trust -- Autonomy and freedom -- Obedience, freedom, and engagement : or utility? -- Society, property, and commerce -- On justice -- Using freedom well -- Judging : legal cases and moral questions -- Practical reason, law, and state.
How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral principles are (...) consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law. (shrink)
Kant is widely acknowledged for his critique of theoretical reason, his universalistic ethics, and his aesthetics. Scholars, however, often ignore his achievements in the philosophy of law and government. At least four innovations that are still relevant today can be attributed to Kant. He is the first thinker, and to date the only great thinker, to have elevated the concept of peace to the status of a foundational concept of philosophy. Kant links this concept to the political innovation of his (...) time, a republic devoted to human rights. He extends the concept by adding to it the right of nations and cosmopolitan law. Finally, Kant democratizes Plato's notion of philosopher kings with a concept of 'kingly people'. This book examines all aspects of this important, but neglected, body of Kant's writings. (shrink)
An examination of the relationship between law and morals, this wide-ranging book develops themes addressed by Hart and Devlin, relating them to issues and events of current interest. Lee covers such timely concerns as: the Moral Majority; embryo experiments and surrogate motherhood; contraception, children's rights, and parents' rights; informed medical consent; equality and discrimination; and freedom of expression and pornography. Stressing the relevance of these issues to the lives of all of us, Lee argues for broader participation in debate on (...) this topic. (shrink)
There have been serious controversies in the latter part of the 20th century about the roles and functions of scientific and medical research. In whose interests are medical and biomedical experiments conducted and what are the ethical implications of experimentation on subjects unable to give competent consent? From the decades following the Second World War and calls for the global banning of medical research to the cautious return to the notion that in controlled circumstances, medical research on human subjects is (...) in the best interest of the given individual and the broader population, this book addresses the key implications of experimentation on humans. This volume covers major ethical themes within biomedical research providing historical, philosophical, legal and policy reflections on the literature and specific issues in the field of research on human subjects. Focusing on special populations (the elderly, children, prisoners and the cognitively impaired) it represents the most up-to-date review of the special ethical and legal conflicts that arise with relation to experimentation on subjects from these groups. In the light of current initiatives for law reform pertaining to research ethics the world over, this volume provides a timely, comprehensive and provocative exploration of the field. The volume has been carefully organized to present important philosophical perspectives on organizing principles that should underlie any practical application. A forward-looking historical review of the regulatory regimes of principal jurisdictions, including of the legal controls already in place, provides the backdrop for future policy initiatives. Additionally, in the light of global restructuring of health care systems, several chapters have been devoted to epidemiological research and related issues. (shrink)
What is law? How is legal responsibility defined? How does law reflect moral judgment? Why are law's definitions uncertain and conflicted? Basic questions for liberal law and criminal justice - what could they have to do with the forgotten historical figure of the Beautiful Soul? Starting from concrete legal issues, Alan Norrie develops a critical vision of law in its relation to morality and socio-historical context. Liberal law, he argues, is marked by splits and contradictions (antinomies), signs of something missed. (...) Traced historically, such conflicts can be read today in law's treatment of legality and justice, judgment and responsibility. A critical understanding must also be self-critical. From splits in law, Norrie moves to the split in critique: between its socio-historical and ethical forms. Drawing on critical realism and deconstruction, on the dialectics of Hegel, Adorno and Bhaskar, he argues for a form of critical thought that is at once historical and ethical. Thinking critically about critique finally leads to the Beautiful Soul, and its unexpected relation to law. These essays will be of interest to academics and advanced students of legal theory; criminal law, criminology and criminal justice; law and social theory; and critical legal studies. (shrink)
It is commonly understood that in its focus on rights and obligations law is centrally concerned with organising responsibility. In defining how obligations are created, in contract or property law, say, or imposed, as in tort, public, or criminal law, law and legal institutions are usually seen as society’s key mode of asserting and defining the content and scope of responsibilities. This book takes the converse view: legal institutions are centrally involved in organising irresponsibility. Particularly with respect to the production (...) of large-scale harms – including extensive human rights violations, forms of colonialism, or environmental or nuclear devastation – and in opposition to conventional understandings of responsibility in law, morality and politics, the book provides a detailed analysis of the ways in which legal institutions – their practices, concepts, and categories – themselves operate as much to deflect responsibility for harms suffered as they do to acknowledge them. Drawing on a series of case studies from local, national, and global concerns the book analyses how law facilitates dispersals and disavowals of responsibility, and it shows how it does so in consistent and patterned ways. In assessing how this ‘organised irresponsibility’ operates, and what its consequences are for both legal analysis and society generally, a thoroughgoing re-evaluation of law’s methods, operation, and consequences is required. At stake is nothing less than a fundamental re-assessment of the role of modern law in the production and legitimation of human suffering. This innovative and interdisciplinary book provides a sustained challenge to conventional thinking about law and legal institutions. It will be of major interest to those working in law, political and legal theory, sociology and moral philosophy. (shrink)
Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the nature of interpretation, (...) its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy. (shrink)
The Euthyphro problem and the natural law : an investigation of some aspects of the medieval debate on natural law -- Aristotle : natural law and man in the "metaxy" -- St. Thomas Aquinas : the "lex naturalis" -- Thomas Hobbes : The state of nature and natural rights -- John Locke : natural law, natural rights and God -- Concluding remarks and a heavenly dialogue.
In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.
Can there be a theory of law? -- Two views of the nature of the theory of law : a partial comparison -- On the nature of law -- The problem of authority : revisiting the service conception -- About morality and the nature of law -- Incorporation by law -- Reasoning with rules -- Why interpret? -- Interpretation without retrieval -- Intention in interpretation -- Interpretation : pluralism and innovation -- On the authority and interpretation of constitutions : some (...) preliminaries -- Postema on law's autonomy and public practical reasons : a critical comment. (shrink)
David Lyons is one of the preeminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses "formal" justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)
An introduction to the philosophy of law, which offers a modern and critical appraisal of all the main issues and problems. This has become a very active area in the last ten years, and one on which philosophers, legal practitioners and theorists and social scientists have tended to converge. The more abstract questions about the nature of law and its relationship to social norms and moral standards are now seen to be directly relevant to more practical and indeed pressing questions (...) about the justification of punishment, civil disobedience, the enforcement of morality, and problems about justice, rights, welfare, and freedom. David Lyons is a shrewd, clear and systematic guide through this tangled area. The book presupposes no formal training in law or philosophy and is intended to serve as a textbook in a range of introductory courses. (shrink)
This book offers an intelligent and thought-provoking analysis of the genealogy of Western capitalist 'development'. Jennifer Beard departs from the common position that development and underdevelopment are conceptual outcomes of the Imperialist Era and positions the genealogy of development within early Christian writings in which the western theological concepts of sin, salvation, and redemption are expounded. In doing so, she links the early Christian writings of theologians such as Augustine and , Anselm and Abelard to the processes of modern identity (...) formation of which the West, the First World, the Rule of Law and the individual subject and his or her freedoms are but a part. The concept of development is thus identified within western culture as a symptom of loss within the desire for completion; as the logic behind the economic restructuring of nations as underdeveloped is revealed as that ruthless imaginary by which First World nations maintain their ideal of themselves. Drawing upon anthropology, economics, historiography, philosophy of science, theology, feminism, cultural studies and development studies, this book contains the best of interdisciplinary work in international law. (shrink)
This book demonstrates that law can be newly interrogated when examined through the lens of literature. Like its forerunner, Empty Justice, the book creates simple pathways which energise and illustrate the links between legal theory and legal science and doctrine, through the wider visions of history, literature and culture. This broadening approach is integral to understanding law in the context of wider debates and media in the community. The book provides a collection of essays, with additional commentary which reflects upon (...) very recent scholarship and debate on a range of ethico-legal topics; it also illustrates how conventional legal matters may be rendered lively and palatable, as an adjunct to approaching doctrine and cases 'cold' in the conventional textbook manner. The chapters range from examination of current thought on cohabitation and marriage laws (via Jude the Obscure), 19th century medico-legal cases relevant to current narratives of insanity in women and the nature and status of expert evidence generally; assisted suicide and autonomy (via a poem by Jon Stallworthy) to an essay on the nature of race and ethnicity (via a poem by R S Thomas), a discussion of obscenity and moral philosophy (via an essay on Crash by J G Ballard and the philosophy of Bernard Williams) and a history of ideas discussion of positivism, natural law and political crisis, war and terrorism through legal and political theory texts and a poem by Auden. The materials refer to case law where appropriate. The chapters range from examination of current thought on cohabitation and marriage laws (via Jude the Obscure), 19th century medico-legal cases relevant to current narratives of insanity in women and the nature and status of expert evidence generally; assisted suicide and autonomy (via a poem by Jon Stallworthy) to an essay on the nature of race and ethnicity (via a poem by R S Thomas), a discussion of obscenity and moral philosophy (via an essay on Crash by J G Ballard and the philosophy of Bernard Williams) and a history of ideas discussion of positivism, natural law and political crisis, war and terrorism through legal and political theory texts and a poem by Auden. The materials refer to case law where appropriate. (shrink)
Law and morality : constructs and models -- The morality of cognition : the normativity of ordinary reasoning -- Law in action : a praxeological approach to law and justice -- Law in context : legal activity and the institutional context -- Procedural constraint : sequentiality, routine, and formal correctness -- Legal relevance : the production of factuality and legality -- From law in the books to law in action : egyptian criminal law between doctrine, case law, jurisprudence, and practice (...) -- The natural person : the contingent and contextual production of legal personality -- The production of causality : a praxeological grammar of the use of causal concepts -- Intention in action : the teleological orientation of the parties to criminal cases -- Morality on trial : structure and intelligibility of the court sentence -- Questions of morality : sequential, structured organization of the interrogation -- The categories of morality : homosexuality between perversion and debauchery. (shrink)
Machine generated contents note: Table of Cases xi -- Table of legislation xv -- Introduction: Medicine Men, Outlaws and Voluntary Euthanasia 1 -- 1. To Kill or not to Kill; is that the Euthanasia Question? 9 -- Introduction-Why Euthanasia? 9 -- Dead or alive? 16 -- Euthanasia as Homicide 25 -- Euthanasia as Death with Dignity 29 -- 2. Euthanasia and Clinically assisted Death: from Caring to Killing? 35 -- Introduction 35 -- The Indefinite Continuation of Palliative Treatment 38 -- (...) Withholding or Withdrawing Treatment 44 -- The Principle of Double Effect 54 -- Physician Assisted Suicide 60 -- Mercy Killing 64 -- Conclusions 66 -- 3. Consent to Treatment but Not to Death 69 -- Introduction-Why Consent? 69 -- Without Consent 70 -- Killing and Consent 73 -- Valid Consent, Freely Given? 74 -- Old Enough to Consent 80 -- Deciding for Others 82 -- Conclusions-A Consent Too Far? 93 -- 4. Autonomy, Self-determination and Self-destruction 95 -- Introduction-Autonomous Choices 95 -- Choosing to Die-Suicide and Autonomy 100 -- Suicidal Intentions 107 -- Autonomous Clinical Discretion 110 -- Deciding to Live or Die-Whose Decision? 112 -- 5. Living Wills and the Will to Die 115 -- Introduction 115 -- I Know My Will 118 -- This is My Will 121 -- I Will Decide 128 -- Will My Will be Done? 134 -- Where There's a Will 137 -- Conclusions 143 -- 6. Is Euthanasia a Dignified Death? 145 -- Introduction-Why Dignity? 145 -- Needing Dignity 146 -- Finding Dignity 149 -- Achieving Dignity in Dying 151 -- Dignifying Death 157 -- 7. Conclusions: Dignified Life, Dignified Death and Dignified Law 165 -- Select Bibliography 175 -- Index 183. (shrink)
Margaret Otlowski investigates the complex and controversial issue of active voluntary euthanasia. She critically examines the criminal law prohibition of medically administered active voluntary euthanasia in common law jurisdictions, and carefully looks at the situation as handled in practice. The evidence of patient demands for active euthanasia and the willingness of some doctors to respond to patients' requests is explored, and an argument for reform of the law is made with reference to the position in the Netherlands (where active voluntary (...) euthanasia is now openly practiced). (shrink)
What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry.
This collection of essays by one of America's leading legal theorists is unique in its scope: it shows how traditional problems of philosophy can be understood more clearly when considered in terms of law, economics, and political science.
Some of the most difficult and wrenching social and political issues in U.S. society today are about the relationship between strongly held moral values and the laws of the land. There is no consensus about whether the law should deal with morality at all, and if it is to do so, there is no agreement over whose morality is to be reflected in the law.In this compact and carefully edited anthology, Gerald Dworkin presents the readings necessary for an understanding of (...) these issues. The volume contains classical and contemporary philosophical statements as well as a generous sampling of legal cases and opinions, including such topics of current interest as flag-burning, nude dancing, the sale of human organs, and sexual behavior. The volume represents the best in applied legal and moral philosophy. (shrink)
The Moral Limits of Law analyzes the related debates concerning the moral obligation to obey the law, conscientious citizenship, and state legitimacy. Modern societies are drawn in a tension between the centripetal pull of the local and the centrifugal stress of the global. Boundaries that once appeared permanent are now permeable: transnational legal, economic, and trade institutions increasingly erode the autonomy of states. Nonetheless transnational principles are still typically effected through state law. For law's subjects, this tension brings into focus (...) the interaction of legal and moral obligations and the legitimacy of state authority. This volume incorporates a comprehensive critical analysis of the methodology and substance of the debates in recent legal, political, and moral philosophy, regarding political obligation and the moral obligation to obey the law. The author argues that traditional accounts of political obligation that assume a bounded conception of the polity are no longer tenable. Higgins therefore presents an original theory of the conscientious agent's attitude towards law that accommodates the contemporary social tension between local and global obligations. (shrink)
This book explains an interaction between Soviet Russia and the West that has been overlooked in much of the analysis of the demise of the USSR. Legislation strikingly similar to the Marxist-inspired laws of Soviet Russia found its way into the legal systems of the Western world. Even though Western governments were at odds with the Soviet government, they were affected by the ideas it put forth. Western law was transformed radically during the course of the twentieth century, and much (...) of that change was along lines first charted in Soviet law. (shrink)
George, B. J. Jr. The evolving law of abortion.--Guttmacher, A. F. The genesis of liberalized abortion in New York: a personal insight.--Callahan, D. Abortion: some ethical issues.--Jakobovits, I. Jewish views on abortion.--Drinan, R. F. The inviolability of the right to be born.--Schwartz, R. A. Abortion on request: the psychiatric implications.--Fleck, S. A psychiatrist's views on abortion.--Niswander, K. R. Abortion practices in the United States: a medical viewpoint.--Macintyre, M. N. Genetic risk, prenatal diagnosis, and selective abortion.--Messerman, G. A. Abortion counselling: shall (...) women be permitted to know?--Pilpel, H. F. and Zuckerman, R. J. Abortion and the rights of minors. (shrink)
On liberty, by J. S. Mill.--Morals and the criminal law, by P. Devlin.--Immorality and treason, by H. L. A. Hart.--Lord Devlin and the enforcement of morals, by R. Dworkin.--Sins and crimes, by A. R. Louch.--Morals offenses and the model penal code, L. B. Schwartz.--Paternalism, by G. Dworkin.--Four cases involving the enforcement of morality: Shaw v. Director of Public Prosecutions; People v. Cohen; Repouille v. United States; Commonwealth v. Donoghue.--Bibliography (p. 149).
As medical technology advances and severely injured or ill people can be kept alive and functioning long beyond what was previously medically possible, the debate surrounding the ethics of end-of-life care and quality-of-life issues has grown more urgent. In this lucid and vigorous book, Craig Paterson discusses assisted suicide and euthanasia from a fully fledged but non-dogmatic secular natural law perspective. He rehabilitates and revitalises the natural law approach to moral reasoning by developing a pluralistic account of just why we (...) are required by practical rationality to respect and not violate key demands generated by the primary goods of persons, especially human life. Important issues that shape the moral quality of an action are explained and analysed: intention/foresight; action/omission; action/consequences; killing/letting die; innocence/non-innocence; person/non-person. Paterson defends the central normative proposition that ‘it is always a serious moral wrong to intentionally kill an innocent human person, whether self or another, notwithstanding any further appeal to consequences or motive’. (shrink)
A world of legal conflicts -- The limits of sovereigntist territoriality -- From universalism to cosmopolitanism -- Towards a cosmopolitan pluralist jurisprudence -- Procedural mechanisms, institutional designs, and discursive practices for managing pluralism -- The changing terrain of jurisdiction -- A cosmopolitan pluralist approach to choice of law -- Recognition of judgments and the legal negotiation of difference.
This book articulates a systematic vision of an international legal system grounded in the commitment to justice for all persons. It provides a probing exploration of the moral issues involved in disputes about secession, ethno-national conflict, "the right of self-determination of peoples," human rights, and the legitimacy of the international legal system itself. Buchanan advances vigorous criticisms of the central dogmas of international relations and international law, arguing that the international legal system should make justice, not simply peace among states, (...) a primary goal, and rejecting the view that it is permissible for a state to conduct its foreign policies exclusively according to what is in the "national interest." He also shows that the only alternatives are not rigid adherence to existing international law or lawless chaos in which the world's one superpower pursues its own interests without constraints. This book not only criticizes the existing international legal order, but also offers morally defensible and practicable principles for reforming it. Justice, Legitimacy, and Self-Determination will find a broad readership in political science, international law, and political philosophy. (shrink)
Chapter one argues for the important contribution that a natural law based framework can make towards an analysis and assessment of key controversies surrounding the practices of suicide, assisted suicide, and voluntary euthanasia. The second chapter considers a number of historical contributions to the debate. The third chapter takes up the modern context of ideas that have increasingly come to the fore in shaping the 'push' for reform. Particular areas focused upon include the value of human life, the value of (...) personal autonomy, and the rejection of double effect reasoning. Chapter four engages in the task of pointing out structural weakness in utilitarianism and deontology. The thesis argues that major systemic weaknesses in both approaches can be overcome by a teleology of basic human goods. John Finnis' work becomes the underpinning of subsequent applied natural law analysis. Chapter five proceeds to argue for the defence of the intrinsic good of human life from direct attack. The thesis holds out for the proposition "that it is always a serious moral wrong to intentionally kill a human person, whether self or another, regardless of a further appeal to consequences or motive." In support of this, it defends the validity of double effect reasoning as an indispensable part of applied moral decision making. Chapter six critically assesses the arguments of anti-perfectionists that it is not the business of the state to enforce deep or substantive conceptions of the 'good life.' The chapter moves on to argue that the natural law conception of the person in society, centred on the common good, provides a solid framework for assessing both the justification for, as well as the limits on, the role of the state to use its power to legally impose certain moral standards. Chapter seven addresses the concrete relationship between natural law and legal policy by exploring the issue of assisted suicide in the constitutional context of the United States.
Introduction -- Overview of the contemporary global context : life stories -- Data on poverty, hunger, and inequality in an age of globalization -- The goals and structure of this book -- Development theory and practice : an overview -- Origins of the concept of development -- Modernization theory -- Modernization theory and U.S. aid policy -- The impact of modernizationist development -- Structuralist economic theories -- Dependency theories -- Basic needs approach -- New international economic order -- Alternative (...) development -- The impact of reformist thought on development policy -- Neoliberal resurgence and structural adjustment policies -- Current debates in development studies -- The failures of modernizationist development : a closer look -- The impacts of colonialism and slavery -- Post-WW II development policies and the third world debt crisis -- Consequences of debt and structural adjustment -- Responses to the debt crisis -- United States opposition to social change in the third world -- Summary of major structural influences on the third world -- Catholic social teaching and development -- CST prior to Pope John XXIII -- Early reflections on development : John XXIII and Vatican II -- The pivotal contributions of Paul VI, the Latin American bishops, and justice in the world -- John Paul II : the centrality of solidarity -- The social ethics of Benedict XVI -- Summary of catholic social teaching on development issues -- Catholic social teaching and political economy : neoconservative and radical critiques -- Neoconservative reflections on CST -- Radical reflections on CST -- Evaluation of neoconservative, radical, and CST views -- Grassroots critics of development and neoliberal globalization -- Rejecting the quest for development - Vandana shiva : the violence of development and reductionist science -- Further issues in the development/globalization debates -- Reclaiming the commons : the positive visions of development critics -- Catholic social teaching, the radical tradition, and development critics -- Grassroots action and policy alternatives -- Grassroots organizations in the third world : an overview -- The impact of grassroots organizations -- Development policies : follow the nic model -- Alternative development policies -- Differing visions : alternative development vs. regeneration -- Prospects for the adoption of alternative policies -- Re-envisioning C atholic social teaching -- The contributions of CST to the development debate -- Enhancing Catholic social teaching -- Structural analysis of capitalism -- Women, development, and CST -- CST, modernization, and cultural diversity -- CST and ecology - CST, grassroots movements, and social struggle -- The church and social change -- Social criticism and pioneering creativity : how Christians can constructively address issues of development and globalization -- Education -- Lifestyle choices -- Responsible purchasing -- Responsible investment -- Organizing, activism, and aid provision -- Direct service/solidarity -- Responsible parenting -- Applying CST in the life of the church -- Concluding reflections -- Theological epilogue: The path of discipleship. (shrink)
Embryo litigation -- Access to ART treatment : insurance and discrimination -- General professional liability litigation -- Paternity and donor insemination -- Maternity and egg donation -- Traditional and gestational surrogacy arrangements -- Posthumous reproduction : access and parentage -- Same-sex parentage and ART -- Genetics (PGD) and ART -- ART-related embryonic stem cell legal developments -- ART-related adoption litigation -- ART-related fetal litigation and abortion-related litigation.
Machine generated contents note: 1. Introduction; 2. Peace; 3. Rule of law; 4. Human rights; 5. Democracy; 6. Liberty; 7. The institutional ethos of the EU; 8. Towards the EU as a just institution; 9. Concluding proposals.
Fundamentalist forms of religion today claim authority everywhere, including the debates over the politics and constitutional law of liberal democracies. This book examines this general question through its critical evaluation of a recent school of thought: that of the new natural lawyers. The new natural lawyers are the lawyers of the current Vatical hierarchy, polemically concerned to defend its retrograde views on matters of sexuality and gender in terms of arguments that, in fact, notably lack the philosophical rigor of the (...) historical Thomism they claim to honor. The book critiques forms of fundamentalism and offers an original argument both for how they arose and why they are unreasonable in contemporary circumstances. (shrink)
Interpreting the everyday -- Art interpretation : the central issues -- A theory of art interpretation : substantive claims -- A theory of art interpretation : conceptual and ontological claims -- Radical constructivism -- Moderate and historical constructivism -- Interpretation and construction in the law -- Relativism versus pluralism.
The volume brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: Legal positivism and the nature of law, practical reason, authority, the value of equality, incommensurability, harm, group rights, and multiculturalism.
The specialised vocabularies of lawyers, ethicists, and political scientists obscure the roots of many real disagreements. In this book, the distinguished American international lawyer Alfred Rubin provides a penetrating account of where these roots lie, and argues powerfully that disagreements which have existed for 3,000 years are unlikely to be resolved soon. Current attempts to make 'war crimes' or 'terrorism' criminal under international law seem doomed to fail for the same reasons that attempts failed in the early nineteenth century to (...) make piracy, war crimes, and the international traffic in slaves criminal under the law of nations. And for the same reasons, Professor Rubin argues, it is unlikely that an international criminal court can be instituted today to enforce ethicists' versions of 'international law'. (shrink)
Machine generated contents note: Prologue; Part I. Philosophical Foundations: 1. Defining human rights in a coherent manner; 2. Near neighbors, distant neighbors and the ethics of globalization; 3. Ethical guidelines for business in an age of globalization; Part II. Practical Applications: 4. Human rights and the ethics of investment in China; 5. Liberia and Firestone: a case study; 6. Free trade, fair trade, and coffee farmers in Ethiopia; 7. Maquiladoras: exploitation, economic opportunity or both?; Part III. The Challenge (...) of Enforcement: 8. Possibilities and problems; 9. Human rights, U.S. multinational corporations and the Alien Tort Claims Act; Epilogue. (shrink)
Natural law as fact, theory, and sign of contradiction -- The second tablet project -- The mystery of what? -- The natural, the connatural, and the unnatural -- Accept no imitations: natural law vs. naturalism -- Thou shalt not kill . . . whom? the meaning of the person -- Capital punishment: the case for justice -- Constitution vs. constitutionalism -- Constitutional metaphysics -- The liberal, illiberal religion.
Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is this all (...) there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless? (shrink)
Abstract. It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as "Law and Social Norms" have much less difficulty in analysing the newly arising forms of private and hybrid "governance without government" from a functional perspective. While legal theory has much to learn from these (...) approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to "law's own rationality." We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for "legalisation" and "constitutionalisation." As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria , and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research. (shrink)
35 million people die annually of non-communicable diseases (NCDs), 80% of them in low- and middle-income countries — representing a marked epidemiological transition from infectious to chronic diseases and from richer to poorer countries. The total number of NCDs is projected to rise by 17% over the coming decade, absent significant interventions. The NCD epidemic poses unique governance challenges: the causes are multifactorial, the affected populations diffuse, and effective responses require sustained multi-sectorial cooperation. The authors propose a range of regulatory (...) options available at the domestic level, including stricter food labeling laws, regulation of food advertisements, tax incentives for healthy lifestyle choices, changes to the built environment, and direct regulation of food and drink producers. Given the realities of globalization, such interventions require global cooperation. In 2011, the UN General Assembly held a High-level meeting on NCDs, setting a global target of a 25% reduction in premature mortality from NCDs by 2025. Yet concrete plans and resource commitments for reaching this goal are not yet in the offing, and the window is rapidly closing for achieving these targets through prevention — as opposed to treatment, which is more costly. Innovative global governance for health is urgently needed to engage private industry and civil society in the global response to the NCD crisis. (shrink)
How is it possible that the idea of sovereignty still features in legal and political philosophy? Most contemporary political philosophers have little use for the idea of ‘unlimited’ or ‘absolute’ power, which is how sovereignty is normally defined. A closer look at sovereignty identifies two possible accounts: sovereignty as the fact of power or sovereignty as a title to govern. The first option, which was pursued by John Austin’s command theory of law, leads to an unfamiliar view of law and (...) the state, which was justly criticised by H. L. A. Hart. The second option, leads to a paradox, because under this view sovereignty is both limited and unlimited. Hence, this argument shows that law and sovereignty are actually incompatible. Where there is law there is no sovereignty, and where there is sovereignty there is no law. (shrink)
Norman Kretzmann's recent analysis of the natural law slogan ``lex iniusta non est lex'' (an unjust law is not a law) demonstrates the coherence of the slogan and makes a case for its practical value, but I shall argue that it also ends up showing that the slogan fails to mark any interesting conceptual or practical division between natural law and legal positivist views about the nature of law. I argue that this is a happy result. The non-est-lex slogan has (...) been used to exaggerate the extent of disagreement about the nature of law and has diverted critics of natural law theory from recognizing that the main disagreement between natural lawyers and legal positivists centres on theories of practical reason and how they affect our understanding of the relationship between law and morality. This extends the debate about the nature of law somewhat beyond the traditional boundaries of philosophy of law, but these boundaries are due in part to the diversion created by debate over the non-est-lex slogan. Recognizing that the non-est-lex slogan fails on its own to mark any interesting practical or conceptual division between natural law theories and legal positivism should therefore focus and encourage debate on matters of genuine substance between these outlooks. The disagreement, however, may turn out to be primarily metaphysical and explanatory and not normative in nature. (shrink)
This article starts from the observation that in classical Athens the discovery of democracy as a normative model of politics has been from the beginning not only a political and a legal but at the same time a philosophical enterprise. Reflections on the concept of criminal law and on the meaning of punishment can greatly benefit from reflections on Athenian democracy as a germ for our contemporary debate on criminal justice in a democracy. Three main characteristics of the Athenian model (...) will be analysed: the self-instituting capacity of a democracy based on participatory and reflective citizenship, political power as the capacity of citizens for co-operating and co-acting with others, and the crime of hubris as one of the key issues in Athenian criminal law. These analyses will lead to the conclusion that one of the key issues of a democratic legal order lies in its capacity of recognizing the fragility of the human condition and of developing workable and effective standards of justice in that context. A relational conception of criminal law and punishment, based on proportionality, reflexivity, mutual respect and responsibility fits best with a democracy under the rule of law. (shrink)
This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts (...) of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)
This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argues that although Bratman’s model of joint action (...) is more psychologically plausible and phenomenologically resonant, its less demanding character also makes it less useful than Gilbert’s in our understanding of the legal concept of concerted practice and in dealing with the above difficulty. The paper proceeds in two parts: first, a discussion of the concept of concerted practices in European competition law; and second, a discussion of Gilbert and Bratman’s models of joint action, including a comparative assessment of their ability to provide an evidentiary target and an evidentiary platform for concerted practices. (shrink)
The moral heart of normative law and economics is efficiency, especially dynamic efficiency that takes incentive effects into account. In the economic theory, justificatory argument is inherently at the institutional- or rule-level, not an the individual- or case-level. InMarkets, Morals, and the Law Jules Coleman argues against the efficiency theory on normative grounds. Although he strongly asserts the need to view law institutionally, he frequently grounds his criticisms of law and economics in arguments from little more than direct moral intuition (...) about individual cases. He evidently holds that consent provides a better normative basis for law than does efficiency and he uses consent arguments to attack recommendations from scholars in law and economics. His own chief contribution, however, is to law and economics rather than to any alternative theory. (shrink)
This paper deals with the relationship between law and social protests, a topic that seems particularly relevant at this time, when recent public events show the existence of growing tension between citizens and public officers. The paper does not explore the ultimate causes that triggered these social protests, but rather the normative and legal questions raised by these conflicts. The main question that it addresses is the following: How should the law act in the face of these growing expressions of (...) social discontent? The main point that it defends is that social protests are political expressions that, as such, deserve a special public (and particularly judicial) protection. The argument is particularly directed at studying the legal consequences of taking the expressive components of social protests seriously. The exploration may have a further theoretical interest for those who are interested in reflecting upon the scope and limits of the theory of deliberative democracy. (shrink)
Some argue that law is the discipline which has mixed most prominently with bioethics, and that bioethicists can be seduced by the law and by legal procedures. While there is a great consensus that law has influenced bioethics in significant and important ways, certainly much more than it influenced other "law and..." disciplines, scholars dispute as to the exact role which the law plays in bioethics, the goals it purports to achieve and the implications of its relationship with the discipline (...) of bioethics. This Article aims to explore the relationship between law and bioethics and calls for a careful evaluation of the law's contributions to bioethics. Specifically, it will be argued that while the law contributed extensively to the development of bioethics it introduced a language and a way of thinking that are not necessarily appropriate to handle and resolve bioethical issues, and which, in significant portion of cases, was irrelevant and had little impact on decision-making and behavioral patterns of patients. Moreover, law's interference with and shape of bioethical issues resulted in serious threats to some of the major characteristic of such issues and brought about to other societal concerns which the law did not consider seriously. The article will conclude that it is now time to re-evaluate the direction in which bioethics should take in the next years, specifically whether it should continue to integrate with law or other disciplines, or alternatively become a more autonomous and independent discipline. (shrink)
Norman Kretzmann''s recent analysis of the natural lawslogan ``lex iniusta non est lex'''' (an unjust law is nota law) demonstrates the coherence of the slogan andmakes a case for its practical value, but I shallargue that it also ends up showing that the sloganfails to mark any interesting conceptual or practicaldivision between natural law and legal positivistviews about the nature of law. I argue that this is ahappy result. The non-est-lex slogan has been used toexaggerate the extent of disagreement about (...) the natureof law and has diverted critics of natural law theoryfrom recognizing that the main disagreement betweennatural lawyers and legal positivists centres ontheories of practical reason and how they affect ourunderstanding of the relationship between law andmorality. This extends the debate about the nature oflaw somewhat beyond the traditional boundaries ofphilosophy of law, but these boundaries are due inpart to the diversion created by debate over thenon-est-lex slogan. Recognizing that the non-est-lexslogan fails on its own to mark any interestingpractical or conceptual division between natural lawtheories and legal positivism should therefore focusand encourage debate on matters of genuine substancebetween these outlooks. The disagreement, however, mayturn out to be primarily metaphysical and explanatoryand not normative in nature. (shrink)
This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. (...) This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty (TE), which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice (ECJ) that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT (and related judgements of the ECJ) may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar. (shrink)