Anthills and aardvarks -- The illusion of independence -- The myth of the master species -- Why law and jurisprudence matter -- The conceit of law -- Respecting the great law -- Remembering who we are -- The question of rights -- Elements of Earth governance -- Seeking Earth jurisprudence -- The rhythms of life -- The law of the land -- A communion of communities -- Transforming law and governance -- The mountain path.
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 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 the 225 years since the United States Constitution was first drafted, no single book has addressed the key questions of what constitutions are designed to do, how they are structured, and why they matter. In From Words to Worlds, constitutional scholar Beau Breslin corrects this glaring oversight, singling out the essential functions that a modern, written constitution must incorporate in order to serve as a nation's fundamental law. Breslin lays out and explains the basic functions of a modern constitution (...) -- including creating a new citizenry, structuring the institutions of government, regulating conflict between layers and branches of government, and limiting the power of the sovereign. He also moves into the esoteric, discussing the theoretical concepts behind the fundamentals of written constitutions and examining in-depth some of the most important constitutional charters from around the world. In assaying how states put the structural ideas into practice, Breslin asks probing questions about why -- and if -- constitutions matter. His answer is a resounding yes. Solidly argued and engagingly written, this comparative study in constitutional thought demonstrates clearly the key components that a state's foundational document must address. In doing so, Breslin draws a critically important distinction between constitutional texts and constitutional practice. (shrink)
The province of jurisprudence compromised -- The province of jurisprudence revisited -- The provinciality of jurisprudence determined -- The morality of jurisprudence determined -- The province of jurisprudence pre-determined -- The province of jurisprudence moralised -- The province of jurisprudence re-generated -- The province of the judiciary democratised -- The experimental province of democracy determined.
This new edition of a standard reference of jurisprudence has been fully revised. Many recent developments which touch on the relationship of laws to morals--homosexuality, obscenity, suicide, and abortion--are discussed, together with controversial economic aspects of modern legislation on such as topics as restrictive trade practices and trade unions.
This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.
This book addresses three major questions about law and legal systems: (1) What are the defining and organizing forms of legal institutions, legal rules, interpretive methodologies, and other legal phenomena? (2) How does frontal and systematic focus on these forms advance understanding of such phenomena? (3) What credit should the functions of forms have when such phenomena serve policy and related purposes, rule of law values, and fundamental political values such as democracy, liberty, and justice? This is the first book (...) that seeks to offer general answers to these questions and thus gives form in the law its due. The answers not only provide articulate conversancy with the subject but also reveal insights into the nature of law itself, the oldest and foremost problem in legal theory and allied subjects. (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)
What does it mean to assert or deny the existence of a legal system? How can one determine whether a given law belongs to a certain legal system? What kind of structure do these systems have, that is--what necessary relations obtain between their laws? The examination of these problems in this volume leads to a new approach to traditional jurisprudential question, though the conclusions are based on a critical appraisal, particularly those of Bentham, Austin, Kelsen, and Hart.
Nicola Lacey presents a new approach to the question of the moral justification of punishment by the State. She focuses on the theory of punishments in context of other political questions, such as the nature of political obligation and the function and scope of criminal law. Arguing that no convincing set of justifying reasons has so far been produced, she puts forward a theory of punishments which places the values of the community at its centre.
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.
This new edition of Jurisprudence brings the book fully up to date and incorporates the following new topics: Utilitarianism, Scandinavian realism, Feminism, Liberalism, the New Critics, and the Hart v Dworkin debate. It also includes a separate chapter on Dworkin's Law's Empire, and the previous chapter on Rights has been substantially revised, to make this a useful and highly readable addition to the student's library.
This new book takes an innovative and novel approach to the study of jurisprudence. Drawing together a range of specialists, making original contributions, it provides a summary, analysis, and critique of basic themes in, and major contributions to, the study of jurisprudence. The book explores issues and ideas in jurisprudence in a way that integrates them with legal study more broadly, avoiding the tendency in recent years for the subject to become overly inward-looking, specialist and technical, leaving students and the (...) subject adrift. It picks up mid-range concepts such as rights, sovereignty, and adjudication and charts their interrelation and uses in law and legal theory. The approach taken to the subject is an interdisciplinary one, and involves making linkages with contemporary issues in political and social theory, such as the changing role of the state, forms of dispute resolution and the courts. It also addresses topics not normally covered, or covered only indirectly in other jurisprudence textbooks, such as globalisation and legal culture. Its coverage is therefore broad and links legal, political, philosophical, and social analysis. (shrink)
This book challenges the usual introductions to the study of law. It argues that law is inherently political and reflects the interests of the few even while presenting itself as neutral. It considers law as ideology and as politics, and critically assesses its contribution to the creation and maintenance of a globalised and capitalist world. The clarity of the arguments is admirably suited to provoking discussions of the role of law in our contemporary world. The third edition provides contemporary examples (...) to sustain the arguments in their relevance to the 21st century. The book includes an analysis of the common sense of law; the use of anthropological examples to gain external perspectives of our use and understanding of law; a consideration of central legal concepts, such as order, rules, property, dispute resolution, legitimation and the rule of law; an examination of the role of law in women's subordination; and finally a critique of the effect of our understanding of law upon the wider world. This book is ideal for undergraduate and postgraduate students reading law. (shrink)
This book gives a unique historical and interpretive analysis of a widely pervasive mode of thought that it describes as the legacy of positivism. Viewing Auguste Comte as a pivotal figure, it charts the historical origins of his positivism and follows its later development through John Stuart Mill and Emile Littre. It shows how epistemological shifts in positivism influenced parallel developments in the human and legal sciences, and thereby treats legal positivism and positivism as it is understood in the human (...) sciences within a common framework. (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.
An extraordinary collection of the finest essays in the core areas of legal philosophy, Readings in Philosophy of Law is a perfect introduction to the breadth of issues covered in the philosophy of law. The essays are all classic papers chosen as much for their clarity of thought and comprehensiveness as for their distinctiveness and importance to the subject matters of legal philosophy. This collection is ideal for the professional as well as the student, as it brings together classic essays (...) that are not otherwise available in one volume. The reader sees each author's thoughts and arguments unfold naturally within the context of other important works. For breadth of contributions and intellectual rigor, Readings in Philosophy of Law is unrivalled. (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)
Recent work in artificial intelligence has increasingly turned to argumentation as a rich, interdisciplinary area of research that can provide new methods related to evidence and reasoning in the area of law. Douglas Walton provides an introduction to basic concepts, tools and methods in argumentation theory and artificial intelligence as applied to the analysis and evaluation of witness testimony. He shows how witness testimony is by its nature inherently fallible and sometimes subject to disastrous failures. At the same time such (...) testimony can provide evidence that is not only necessary but inherently reasonable for logically guiding legal experts to accept or reject a claim. Walton shows how to overcome the traditional disdain for witness testimony as a type of evidence shown by logical positivists, and the views of trial sceptics who doubt that trial rules deal with witness testimony in a way that yields a rational decision-making process. (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)
This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the (...) end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law. (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.
Part of the Studies in Crime and Public Policy series, this book, written by one of the top philosophers of punishment, examines the main trends in penal theorizing over the past three decades. Duff asks what can justify criminal punishment, and then explores the legitimacy of actual practices by examining what would count as adequate justification for them. Duff argues that a "communicative conception of punishment," which he presents as a third way between consequentialist and retributive theories, offers the most (...) fruitful way of understanding punishment's meaning and justification. Duff addresses such questions as how much sentences should be constrained by proportionality requirements; what modalities of punishment best communicate their intended meaning; and what decisionmaking procedures he envisions. This book will appeal to criminologists, philosophers, and others interested in theories of punishment. (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)