This collection brings together well-established scholars to examine the limits of law, a topic that has been of broad interest since the events of 9/11 and the responses of U.S. law and policy to those events. The limiting conditions explored in this volume include marking law’s relationship to acts of terror, states of emergency, gestures of surrender, payments of reparations, offers of amnesty, and invocations of retroactivity. These essays explore how law is challenged, frayed, and constituted out of contact (...) with conditions that lie at the farthest reaches of its empirical and normative force. (shrink)

In this article we present a dissertation on the limits of law and morality, a topic of supreme importance for the Philosophy of Law and the real cape horn or the storms of Science and Legal Philosophy, where so many systems, when trying to overcome it and perhaps save the previous ones, have been shipwrecked. Our aim is to expose the historical development of this relationship from ancient, medieval and modern age, to give an account of how the Krausist (...) legal philosophy was interwoven in this context and how it has given answers that have left interesting results of great validity in the field of legal philosophy. Finally, we expose some of the topics that the philosophy of law opened to the juridical discussions of its time, and which were enormously original and precursors of what still is being debated today in the areas of Philosophy of Law and Political 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 collection brings together well-established scholars to examine the limits of law, a topic that has been of broad interest since the events of 9/11 and the responses of U.S. law and policy to those events. The limiting conditions explored in this volume include marking law’s relationship to acts of terror, states of emergency, gestures of surrender, payments of reparations, offers of amnesty, and invocations of retroactivity. These essays explore how law is challenged, frayed, and constituted out of contact (...) with conditions that lie at the farthest reaches of its empirical and normative force. (shrink)

This introductory chapter integrates two different steps: a global consideration of the problems which the “signifier” limits is able to include and a detailed mapping of the reflective path which the following thirteen chapters effectively pursue.

In this paper, I examine the generally accepted idea that law has definite limits to what it can be used to achieve. Toward this end, I discuss the limits of law as suggested by the Truth Commissions and the Truth and Reconciliation Commissions (TRC), and summarize the divergences between law and the TRC. I suggest reasons why law may not serve or may underserve the purpose of healing and reconciliation in our time and conclude that the TRC is (...) at best a reminder to us of the limits of law as a principle of social ordering. (shrink)

Ethicists and legal theorists have proposed models of corporate culpability that shift the standard of guilt determination from vicariousattribution of individual action and intention to an assessment of culture, policies, as well as organizational action and inaction. This paper briefly reviews four prominent models of corporate culpability, arguing that each makes claims that extend well beyond the limits of existing law. As an alternative to these models, a constructive corporate fault is described that relies on both objective and subjective (...) reasonableness judgments. The paper concludes with a consideration of constructive corporate fault in relation to an Accountability model of corporate liability. (shrink)

This book explores the emergence of the fundamental political concepts of medieval Jewish thought, arguing that alongside the well known theocratic elements of the Bible there exists a vital tradition that conceives of politics as a necessary and legitimate domain of worldly activity that preceded religious law in the ordering of society. Since the Enlightenment, the separation of religion and state has been a central theme in Western political history and thought, a separation that upholds the freedom of conscience of (...) the individual. In medieval political thought, however, the doctrine of the separation of religion and state played a much different role. On the one hand, it served to maintain the integrity of religious law versus the monarch, whether canon law, Islamic law, or Jewish law. On the other hand, it upheld the autonomy of the monarch and the autonomy of human political agency against theocratic claims of divine sovereignty and clerical authority. Postulating the realm of secular politics leads the author to construct a theory of the precedence of politics over religious law in the organization of social life. He argues that the attempts of medieval philosophers to understand religion and the polity provide new perspectives on the viability of an accommodation between revelation and legislation, the holy and the profane, the divine and the temporal. The book shows that in spite of the long exile of the Jewish people, there is, unquestionably, a tradition of Jewish political discourse based on the canonical sources of Jewish law. In addition to providing a fresh analysis of Maimonides, it analyzes works of Nahmanides, Solomon ibn Adret, and Nissim Gerondi that are largely unknown to the English-speaking reader. Finally, it suggests that the historical corpus of Jewish political writing remains vital today, with much to contribute to the ongoing debates over church-state relations and theocratic societies. (shrink)

In Eichmann in Jerusalem , Hannah Arendt struggled to defend the possibility of judgment against the obvious problems encountered in attempts to offer legally valid and morally meaningful judgments of those who had committed crimes in morally bankrupt communities. Following Norrie, this article argues that Arendt’s conclusions in Eichmann are equivocal and incoherent. Exploring her perspectival theory of judgment, the article suggests that Arendt remains trapped within certain Kantian assumptions in her philosophy of history, and as such sees the question (...) of freedom in a binary way. The article argues that Adorno’s philosophy of freedom provides the resources to diagnose and overcome Arendt’s shortcomings. Adorno’s position provides a way of embracing the antinomical character of judgment, by emphasising the need for elements of reason and nature in the phenomenon of freedom. In Adorno’s lights, judgment becomes an attempt to express a ‘spirit of solidarity’ with the tragic status of the potentially free but actually unfree subject of modernity. (shrink)

This article seeks to identify and address the normative void that resides at the heart of postmodernist-feminist theory, and to propose a philosophical framework – beyond postmodernism, but incorporating its central insights – for thinking through the normative questions with which feminists are inevitably confronted in their engagements with positive law. Two varieties of postmodernist-feminism are identified and critically analysed: the ‘corporeal feminism’ of Elizabeth Grosz and Judith Butler, which seeks to ground feminist critical practice in the irruptive capacities of (...) the material body considered as an arte fact of social construction; and the deconstructionist feminism of Drucilla Cornell, for whom ‘the feminine’ is an indeterminate but disruptive force beyond its construction in law and in other social sites. The first component of the argument elaborated here is that each of these approaches ultimately reduces to a form of aestheticism which is incapable of generating a worthwhile and workable feminist approach to the restructuring of politics and law. The second component of the argument involves a return to aesthetics, in particular to the philosophical aesthetics of Kant’s Critique of Judgement. Kant’s aesthetic philosophy, it will be suggested, yields a framework of concepts which, duly re-manipulated, could speak to the very concerns that have inspired postmodernist-feminism: how to attend to (bodily) particularity while avoiding the dangers associated with ‘essentialism’; and how to theorise the propensity of the unrepresentable power of the feminine to exceed both embodied human capacities and the confining rein of socially privileged rationalities. Crucially, however it also responds to a set of preoccupations – those of the feminist lawyer – that cannot be accommodated by postmodernism: how to translate embodied experience into (legal) norms; generalise from the particular; seek consensus; and codify an endless potentiality in the form of law. (shrink)

A theory of customary international law -- Case studies -- A theory of international agreements -- Human rights -- International trade -- A theory of international rhetoric -- International law and moral obligation -- Liberal democracy and cosmopolitan duty.

Although this book bears a copyright date of 1980, it is obviously the fruit of a lifetime of reflection. One does not have to share the author's perspective or concur in every judgment to recognize the wisdom, both speculative and practical, that is manifest throughout. The first part of the book develops a theory of positive law and its place in the natural order. The last part examines the place of law in the social order and the role of legal (...) action as one form of the social control. (shrink)

Economic development and mass urbanization have unleashed unprecedented levels of land disputes in East Asia. In China and Vietnam especially, courts and other legal institutions struggle to find lasting solutions. It is against this background of legal failure that this book brings together leading scholars to understand how state agencies, land users and land developers imaginatively engage with each other to resolve disputes. Drawing on empirically rich case studies, contributors explore the limits of law and legal institutions in resolving (...) land disputes and reveal insights into how key actors in East Asia understand land disputes. Their studies reveal promising dispute resolution practices and point to the likely ways that states will deal with land disputes in the future. (shrink)

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the (...) lawmaker. (shrink)

The law sometimes permits what ordinary morality, or widely-shared notions of right and wrong, reproaches. Rights to Do Grave Wrong explores the relationship between law and common morality to clarify law's reliance on society's broad presumption that people will exercise their rights responsibly. More concretely, he argues that certain legal rights rest on tacit sociological assumptions as to who will exercise them, under what circumstances, and how frequently. Further, he argues that we depend on stigma and shame to reduce and (...) circumscribe the law's use. Some examples: though reneging on a debt is considered wrong, the law allows you to declare personal bankruptcy; international law allows museums to retain some masterworks looted from their rightful owners; in many countries abortion is permitted as a means of birth control. Using these examples and more, Osiel presents a "social scientific" analysis of law's interaction with social mores and the extent to which they limit our exercising rights to do wrong. The paradox he intends to elucidate is when and why it is appropriate for societies to champion de jure entitlements even as they successfully limit their de facto usage. (shrink)

This note examines the decision of the Family Division of the High Court in N. v. N. (Jurisdiction: Pre-Nuptial Agreement) in which, in the context of Jewish divorce proceedings, the Court found that it had no jurisdiction to order a husband, by specific performance of a marriage agreement, to go through the procedure to obtain a ‘get’ (a hand-written bill of divorcement) allowing his wife to remarry. First, discussion of the case is contextualised broadly within the debate on the (de)merits (...) of employing legal means in order to redress social wrongs. Secondly, adopting a theoretical perspective upon the difficulties involved in using law to achieve social change, the note goes on to examine more specifically why women from minority cultures may choose to go to the law of the dominant culture in order to obtain relief. (shrink)

By virtue of the Antarctic Treaty, signed in 1959, the territorial claims to Antarctica of seven of the original signatories were held in abeyance or “frozen.” Considered by many as an exemplar of international law, the Antarctic Treaty System has come to be increasingly questioned, however, in a very much changed global scenario that presents new challenges to the governance of the White Continent. In this context, it is necessary to gain a clearer understanding of the moral weight of those (...) initial claims, which stand as a cornerstone of the treaty. The aim of this article is to offer an appraisal of such claims, which may be divided into two main kinds: those grounded on some relevant link to the territory, and those grounded on official documents and geographical doctrines. After pointing to the limitations and challenges that they face, I conclude with some remarks about how this assessment ought to serve as a starting point to rethink the territorial status of Antarctica. (shrink)

Kantian legalism is now the dominant scholarly interpretation of Kant and an important approach to legal and political philosophy in its own right. One notable feature is its construal of the relationship between law and politics decisively in law’s favour: Law subordinates politics. Political judgment is constrained by and only permissibly exercised through law. This paper opposes this subordination through a close analysis of an ambiguity in Kant’s conception of sovereignty. Understanding this ambiguity requires seeing that, for Kant, law cannot (...) subordinate the sovereign’s political judgment because it is a condition which makes a legal system possible. Kant was not an exacting legalist, but a practical reasoner struggling with the pressures politics imposes on finite beings. Through discussion of a leading contemporary approach, and close engagement with its historical source, the paper raises new considerations about the relevance of political judgment in the relationship of law and politics. (shrink)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding (...) "profound offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant "excesses" of responsibility for war crimes unaccounted for.

Despite some significant advances in the creation and protection of rights affecting women's health, these do not always translate into actual health benefits for women. This collection asks: 'What is an effective law and what influences law's effectiveness or ineffectiveness? What dynamics, elements, and conditions come together to limit law's capacity to achieve instrumental goals for women's health and the advancement of women's health rights?' The book presents an integrated, co-referential and sustained critical discussion of the normative and constitutive reasons (...) for law's limited effectiveness in the field of women's health. It offers comprehensive and cohesive explanatory accounts of law's limits and for the first time in the field, introduces a distinction between formal and substantive effectiveness of laws. Its approach is trans-systemic, multi-jurisdictional and comparative, with a focus on six countries in North America, Europe, Asia, and Africa and international human rights case law based on matters arising from Hungary, Portugal, Spain, Slovakia, Czech Republic, Peru and Bolivia. The book will be a valuable resource for educators, students, lawyers, rights advocates, and policy-makers working in women's health, socio-legal studies, human rights, feminist legal studies, and legal philosophy more broadly. (shrink)

One does not need to read many pages of this very rich book to realize that it is the fruit of a lifetime of study and that it is both speculatively wise and prudent. Though it may not receive the same degree of attention as other well publicized studies it clearly ranks with studies such as Hart's The Concept of Law and Erlich's The Sociology of Law. The author intends to develop a systematic theory of positive law, with close attention (...) to the circumstances that bring law into being, the purposes that law is designed to serve, and the structure of the legal system itself. He also proposes to apply this theory to an examination of the problems that law faces and the conditions that it must satisfy if it is to be an effective force in society. Nineteen chapters follow. Jenkins is aware that the study of law is but part of the larger study of society from which law receives its tasks and form. To determine the origin, end and functions of law is to search for those objective principles that define the conditions of man's well-being. While the first part of the book is concerned with the formulation of a general theory of law, the second explores the role of law in the social order and the conditions of legal effectiveness. Jenkins provides dramatic evidence that in our day, particularly in the United States, law is being employed for purposes that are unprecedented. "The legal apparatus," he writes, "is being asked to intervene in areas of social and personal life that have hitherto been handled by other agencies in other ways." It is the author's judgment that these nontraditional uses of law have for the most part been disappointing in their results. "We abuse the legal apparatus," writes Jenkins "because we have inadequate notions both of what the law is and how it works." Jenkins is convinced that law supplies the compelling social need for a force that is at once sovereign and principled. As sovereign it is entitled to habitual obedience and to the use of force when necessary. As sovereign, subject to no external control, it must be principled. It must govern itself by self-imposed provisions and mechanisms that determine the use of this power and prevent it from becoming autocratic and arbitrary. (shrink)

These four volumes address the question of the kinds of conduct may the state make criminal without infringing on the moral autonomy of individual citizens.

In his major new work, David Boucher surveys the history of thinking about human rights and shows that far from being seen as universal and emancipatory, they have almost always privileged certain groups in relation to others.

In this volume, Feinberg focuses on the meanings of "interest," the relationship between interests and wants, and the distinction between want-regarding and ideal-regarding analyses on interest and hard cases for the applications of the concept of harm. Examples of the "hard cases" are harm to character, vicarious harm, and prenatal and posthumous harm. Feinberg also discusses the relationship between harm and rights, the concept of a victim, and the distinctions of various quantitative dimensions of harm, consent, and offense, including the (...) magnitude, probability, risk, and "importance" of harm. (shrink)

The final volume of Feinberg's four-volume work, The Moral Limits of Criminal Law examines the philosophical basis for the criminalization of so-called "victimless crimes" such as ticket scalping, blackmail, consented-to exploitation of others, commercial fortune telling, and consensual sexual relations.

"[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." "[T]he essense of (...) the ideal of the rule of law is that people ought to be governed by law. This general ideal has at least two main components. First, it requires that governments, namely, de facto political authorities, should rule, that is, guide their subjects' conduct, by law. Second, it requires that the law by which governments purport to rule should be such that it can actually guide human conduct." "The idea that governments should rule by law must be premised on the assumption that rule by law, regardless of the laws' specific content, is to be preferred to governance by other means of social control. And this immediately brings us to the second component of the rule of law, namely, that the law must be such that it can actually guide human conduct, and the further assumption that these necessary features of law embody certain virtues. In other words, unless we can first articulate what is unique about legal means of social control, and explain why those features promote certain goods, we cannot ground the idea that governments should rule by law." Discusses ways, following mainly Fuller, one can fail to make law. Notes that these are functional goods for the regulation of human behavior. They may have a connection to other things we value. We should not assume, though, that greater instantiation of these ideals is always better - sometimes ideals conflict such that more of one means less of another and "because such values, on their own grounds, set only a rough standard wherby gross deviations from it would be wrong." "Compliance with the generality-relevance principle is crucially important in safeguarding against such unjustified favoritism since it requires that the norm's subjects be those who qualify as such only on the basis of the reasons for enacting the norm in the first place." Though, we must recognize teh possibility of bad law in the sense of unjust discrimination. "It is part of the concept of law that the law purports to affect human behavior by introducing new norms and changing old ones. The concept of a norm and conduct-guidance by norms is an essential aspect of what the law is. Norms, as such, necessarily purport to provide reasons for action. A norm cannot provide a reason for action, however, unless its subjets are aware of the norm and regard it as a reason for action." Justifies some retroactivity in terms of the need for flexibility in any functioning legal system. "Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it must have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality.". (shrink)