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)
The core of this book is a novel theory of distributive justice premised on the fundamental moral equality of persons. In the light of this theory, Rakowski considers three types of problems which urgently require solutions-- the distribution of resources, property rights, and the saving of life--and provides challenging and unconventional answers. Further, he criticizes the economic analysis of law as a normative theory, and develops an alternative account of tort and property law.
Students of jurisprudence often approach this complex subject with a sense fo fear. This book provides a clear user friendly analysis of the major theories and controversies of jurisprudence. Whilst the subject is presented in sufficient detail for the student to gain an accurate understanding, they will not be left feeling confused and bewildered. The book starts by examining the nature of jurisprudence, then goes on to outline the content, implications and problems of the major legal theories. This third edition (...) has been expanded to include material on Islamic jurisprudence and postmodern legal theory. (shrink)
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)
Margaret Gilbert offers an incisive new approach to a classic problem of political philosophy: when and why should I do what the law tells me to do? Do I have special obligations to conform to the laws of my own country and if so, why? In what sense, if any, must I fight in wars in which my country is engaged, if ordered to do so, or suffer the penalty for law-breaking the law imposes - including the death penalty? Gilbert's (...) accessible book offers a provocative and compelling case in favour of citizens' obligations to the state, while examining how these can be squared with self-interest and other competing considerations. (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 pioneering new book suggests how different traditions of sociological thought can contribute to an understanding of the theory and practice of rights. Rights: Sociological Perspectives provides a sociological treatment of a wide range of substantive issues but without losing sight of key theoretical questions. It considers some varied cases of public intervention, including welfare, caring, mental health provisions, pensions, justice and free speech, alongside the rights issues they raise. Similarly, it examines the question of rights from the point of (...) view of distinctive population groups, such as prisoners and victims, women, ethnic minorities, indigenous peoples, and lesbians and gays. It also contains two specifically theoretical chapters, which provide a critical overview of the existing approaches to the construction and implementation of rights. Rights: Sociological Perspectives offers a diverse and detailed exploration of the contribution sociological thought can make to this increasingly important aspect of social life and will be an invaluable aid to students. (shrink)
The Proliferation of Rights explores how the assertion of rights has expanded dramatically since World War II. Carl Wellman illuminates for the reader the historical developments in each of the major categories of rights, including human rights, civil rights, women’s rights, patient rights, and animal rights. He concludes by assessing where this proliferation has been legitimate and helpful, cases where it has been illusory and unproductive, and alternatives to the appeal to rights.
This book undermines privacy scepticism, proving a strong theoretical foundation for many of our everyday and legal privacy claims. Inness argues that intimacy is the core of privacy, including privacy appeals in tort and constitutional law. She explores the myriad of debates and puts forth an intimacy and control-based account of privacy which escapes these criticisms.
Herbert Lionel Adolphus Hart was born in Yorkshire in 1907 to second generation Jewish immigrants. Having won a scholarship to Oxford University, he went on to become the most famous legal philosopher of the twentieth century. From 1932-40 H.L.A Hart practised as a barrister in London. He was pronounced physically unfit for military service in 1940, and was recruited by MI5, where he worked until 1945. During his time at the Bar he had continued to study philosophy and at M15 (...) his interest was further stimulated by his philosopher colleagues in M16, Stuart Hampshire and Gilbert Ryle. After the war, Hart returned to Oxford to take up a philosophy fellowship, later to become Professor of Jurisprudence. H.L.A Hart single-handedly reinvented the philosophy of law and influenced the nation's thinking in the 1960s on abortion, the legalization of homosexuality, and on capital punishment. Hart's approach to legal philosophy was at once disarmingly simple and breathtakingly ambitious, combining as it did the insights of Austin and Bentham and the new linguistic philosophy of J.L. Austin and Ludwig Wittgenstein. He sought to elucidate a concept of law which would be of relevance to all forms of law, wherever or whenever they arose: his bestselling book, The Concept of Law, has sold tens of thousands of copies worldwide. In 1941, he married Jenifer Williams (a high-ranking civil servant, later an Oxford academic) with whom he had four children. Their relationship was an enduring if unconventional one. In the early 1950s, Jenifer was rumoured to be having a long-standing affair with Isaiah Berlin, one of Hart's closest friends. She was also, falsely, accused by the Sunday Times of having been a Russian spy, an allegation which was all the more scandalous given Hart's position at MI5 during the War. Nicola Lacey draws on Hart's previously unpublished diaries and letters to reveal a complex inner life. Outwardly successful, Hart was in fact tormented by doubts about his intellectual abilities, his sexual identity and his capacity to form close relationships. Her biography also sheds fascinating light on the origins of his ideas, and assesses his overall contribution. Above all, it chronicles of a life which had a depth ands impact far greater than many of Hart's readers have realized. (shrink)
Are propositions of law true or false? If so, what does it mean to say that propositions of law are true and false? This book takes up these questions in the context of the wider philosophical debate over realism and anti-realism. Despite surface differences, Patterson argues that the leading contemporary jurisprudential theories all embrace a flawed conception of the nature of truth in law. Instead of locating that in virtue of which propositions of law are true, Patterson argues that lawyers (...) use forms of argument to show the truth of propositions of law. Additionally, Patterson argues that the realism/anti-realism debate in jurisprudence is part of a larger argument over the role of postmodernism in jurisprudence. For this, Patterson offers an analytic account of postmodernism and charts its implications for legal theory. This book will be of interest to those in legal theory, philosophy, social and political theory, and ethics. (shrink)
The work of Jürgen Habermas has long been regarded as central to the development of social and political theory and philosophy in the late 20th century. With the publication of his latest book Between Facts and Norms, Habermas has signalled the importance of exploring modern legal theory to our understanding of democratic society. Habermas, Modernity, and Law brings together leading scholars from around the world to provide a clear introduction to this key development in Habermas's work. With chapters ranging from (...) the possibility of valid law to discourse ethics and human rights, the contributors successfully integrate a broad range of Habermas's writings with his most recent thoughts on the place of the law in contemporary theory. Habermas, Modernity, and Law provides a fascinating overview to the work of Habermas and will be particularly valuable to students and professionals in the fields of European philosophy and social, political, and legal theory. (shrink)
This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation feel (...) bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)
In this challenging collection of new essays, leading philosophers and criminal lawyers from the United States, the United Kingdom, and Canada break with the tradition of treating the philosophical foundations of criminal law as an adjunct to the study of punishment. Focusing clearly on the central issues of moral luck, mistake, and mental illness, this volume aims to reorient the study of criminal law. In the process of retrieving valuable material from traditional law classifications, the contributors break down false associations, (...) reveal hidden truths, and establish new patterns of thought. Their always illuminating and sometimes startling conclusions makes this essential reading for all those interested in the philosophy of criminal law. (shrink)
The problem of the judge: judicial freedom of decision, its necessity and method, by F. Gény.--Judicial freedom of decision, its principles and objects, by E. Ehrlich.--Dialecticism and technicality; the need of sociological method, by J. G. Gmelin.--Equity and law, by G. Kiss.--The perils of emotionalism, by F. Berolzheimer.--Judicial interpretation of enacted law, by J. Kohler.--Courts and legislation, by R. Pound.--The operation of the judicial function in English law, by H. B. Gerland.--Codified law and case-law, by É. Lambert.--Methods of juridical thinking, (...) by K. G. Wurzel.--The problem of the legislator: methods for scientific codification, by A. Alvarez.--The legislative technic of modern civil codes, by F. Gény.--Scientific method in legislative drafting, by E. Freund. (shrink)
For several decades the work of Joel Feinberg has been the most influential in legal, political, and social philosophy in the English-speaking world. This volume honours that body of work by presenting fifteen original essays, many of them by leading legal and political philosophers, that explore the problems that have engaged Feinberg over the years. Amongst the topics covered are issues of autonomy, responsibility, and liability. It will be a collection of interest to anyone working in moral, legal, or political (...) philosophy. (shrink)
Peter Morton provides in these pages a fundamental critique of the assumptions of positivist jurisprudence and also puts forth an attack on the foundationalism of contemporary legal philosophy. His prime concern is to distinguish between the different fields of law--penal, civil, and public--taking as his starting point a careful analysis of those institutions in a democracy wherein legal language and norms are in fact generated. Offering an original, coherent, and systematic exposition of law in today's society, Morton sheds new light (...) on legal practices and relations by way of a comparison with an ideal type of legal system. (shrink)
This book examines several key approaches used by courts and legislatures to assess the claims made by minorities for protection of some aspect of their identities such as a cultural or religious practice.
Introduction to the Philosophy of Law: Readings and Cases employs a combination of case-based and theory-based materials to show novices in the field how the philosophy of law is related to concrete and actual legal practice. Ideal for undergraduates, it engages their curiosity about the law without sacrificing philosophical content. The authors emphasize a command of legal concepts and doctrine as a prelude to philosophical analysis. Designed to acquaint students with the fundamentals of jurisprudence and legal theory, Part I of (...) the book includes readings from influential philosophers representing eight different types of jurisprudence: natural law theory, positivism, constructivism, consequentialism, critical legal studies, feminist theory, practice theory, and new natural law theory. In Part II, the authors present a variety of cases that allow students to apply the theories in Part I to the actual practice of law. Unlike similar texts, which focus primarily on public law, this unique book addresses both private and public law and includes cases on statutory interpretation, contract law, and tort law. Brief essays precede and discussion questions follow each case. Introduction to the Philosophy of Law: Readings and Cases serves as an exceptional text for courses in the philosophy of law, jurisprudence, and legal theory. (shrink)
The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political philosopher (...) Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)
Why does the law spurn win-win transactions? -- Things we can't consent to, though no one knows why -- A parable -- Lessons -- The social choice connection -- Why is the law so full of loopholes? -- The irresistible wrong answer -- What is wrong with the irresistible answer? -- The voting analogy -- Turning the analogy into an identity -- Intentional fouls -- Why is the law so either/or? -- The proverbial rigidity of the law -- Line drawing (...) as a matter of life and death -- Why don't we punish all we condemn? -- The undercriminalization problem -- Multicriterial ranking and the undercriminalization problem -- Final thoughts. (shrink)
When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice (such as responsibility, fault, negligence, due (...) care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law. (shrink)