Minority rights law has been an important axis for the evolution of international law itself. While much has been written about minority rights regimes in Europe, there is very little information available with regards to Asian experiences. Countries in Asia, with their diverse populations, are struggling with constructing legal systems that will deliver on the promise of equal rights to all its citizens. This book evaluates these attempts in four Asian states: India, China, Malaysia and Singapore by examining the theory (...) and practice of minority rights law in these vastly different settings. (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)
In three parts, this volume in the AP-LS series explores the phenomena of captivity and risk management, guided and informed by the theory, method, and policy of psychological jurisprudence. The authors present a controversial thesis that demonstrates how the forces of captivity and risk management are sustained by several interdependent "conditions of control." These conditions impose barriers to justice and set limits on citizenship for one and all. Situated at the nexus of political/social theory, mental health law and jurisprudential ethics, (...) the book examines and critiques constructs such as offenders and victims; self and society; therapeutic and restorative; health; harm; and community. So, too, are three "total confinement" case law data sets on which this analysis is based. The volume stands alone in its efforts to systematically "diagnose" the moral reasoning lodged within prevailing judicial opinions that sustain captivity and risk management practices impacting: (1) the rights of juveniles found competent to stand criminal trial, the mentally ill placed in long-term disciplinary isolation, and sex offenders subjected to civil detention and community re-entry monitoring; (2) the often unmet needs of victims; and (3) the demands of an ordered society. Carefully balancing sophisticated insights with concrete and cutting-edge applications, the book concludes with a series of provocative, yet practical, recommendations for future research and meaningful reform within institutional practice, programming, and policy. (shrink)
From early in his career Jacques Derrida was intrigued by law. Over time, this fascination with law grew more manifest and he published a number of highly influential analyses of ethics, justice, violence and law. This book brings together leading scholars in a variety of disciplines to assess Derrida's importance for and impact upon legal studies.
The adversary system and the practice of law -- The rule of law -- The moral force of law -- Statutes -- Precedents -- Constitutional interpretation -- Natural law and legal positivism: classical perspectives -- Formalism and legal realism -- Morality and the law -- International law -- Law and economics -- The justification of punishment -- The rights of defendants -- Sentencing -- Criminal responsibility -- Compensating for private harms: the law of torts -- Private ownership: the law of (...) property -- Private agreements: the law of contract -- Church and state -- Personal liberty and privacy -- Freedom of speech -- Equality. (shrink)
In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness and legitimacy. The final (...) chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)
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)
This is the first book that attempts to analyze and define the metholodology and values of contemporary accounts of adjudication, which can be divided into orthodox philosophies on the one hand and heretical accounts on the other. The author offers an incisive and original analysis of how these supposedly incompatible accounts actually differ.
The criminal courts have a power to stop a prosecution from proceeding altogether where it would be inappropriate for it to continue. This power to stay proceedings which constitute an abuse of the process of the court has assumed great practical significance and is potentially applicable in many situations. There is at least one consideration of the abuse of process doctrine in virtually every major criminal trial today.This fully updated second edition of Abuse of Process and Judicial Stays of Criminal (...) Proceedings blends doctrinal discussion with a thorough consideration of the underlying theory to provide a searching analysis of the theory and practice of abuse of process in England and Wales, with comparative examinations of many other jurisdictions including The USA, Canada, Australia, and New Zealand. This edition focuses in particular upon the profound impact of the European Convention on Human Rights in this area. (shrink)
The economically deprived come into contact with the criminal court system in disproportionate number. This collection of original, interactive essays, written from a variety of ideological perspectives, explores some of the more troubling questions and ethical dilemmas inherent in this situation. The contributors, including well-known legal and political philosophers Philip Pettit, George Fletcher, and Jeremy Waldron, examine issues such as heightened vulnerability, indigent representation, and rotten social background defenses.
This is the only anthology that focuses exclusively on the two central issues in the philosophy of criminal law: What kinds of behavior should society criminalize?; and What should society do with those who engage in such behavior?
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)
This is the first modern book to describe Francis Bacon's jurisprudence. He has long been famous as a scientist, philosopher, politician and literary giant, but his career as one of England's greatest lawyers and jurists has been largely overlooked. Bacon's major contribution to Anglo-American jurisprudence is presented in such a way as to be suitable to specialists and non-specialists alike. The purpose is to restore Bacon to his rightful place as England's first true critical and analytical jurist, and to describe (...) how his legal thought related to his other great intellectual achievements. (shrink)
Rules proliferate; some are kept with a bureaucratic stringency bordering on the absurd, while others are manipulated and ignored in ways that injure our sense of justice. Under what conditions should we make exceptions to rules, and when should they be followed despite particular circumstances? The two dominant models in the literature on rules are the particularist account and that which sees the application of rules as normative. Taking a position that falls between these two extremes, Alan Goldman provides a (...) systematic framework to clarify when we need to follow rules in our moral, legal and prudential decisions, and when we ought not to do so. The book distinguishes among various types of rules; it illuminates concepts such as integrity, self-interest and self-deception; and finally, it provides an account of ordinary moral reasoning without rules. This book will be of great interest to advanced students and professionals working in philosophy, law, decision theory and the social sciences. (shrink)
"Human beings are a part of nature and apart from it." The argument of Natural Law and Justice is that the philosophy of natural law and contemporary theories about the nature of justice are both efforts to make sense of the fundamental paradox of human experience: individual freedom and responsibility in a causally determined universe. Professor Weinreb restores the original understanding of natural law as a philosophy about the place of humankind in nature. He traces the natural law tradition from (...) its origins in Greek speculation through its classic Christian statement by Thomas Aquinas. He goes on to show how the social contract theorists adapted the idea of natural law to provide for political obligation in civil society and how the idea was transformed in Kant's account of human freedom. He brings the historical narrative down to the present with a discussion of the contemporary debate between natural law and legal positivism, including particularly the natural law theories of Finnis, Richards, and Dworkin. Professor Weinreb then adopts the approach of modern political philosophy to develop the idea of justice as a union of the distinct ideas of desert and entitlement. He shows liberty and equality to be the political analogues of desert and entitlement and both pairs to be the normative equivalents of freedom and cause. In this part of the book, Weinreb considers the theories of justice of Rawls and Nozick as well as the communitarian theory of Maclntyre and Sandel. The conclusion brings the debates about natural law and justice together, as parallel efforts to understand the human condition. This original contribution to legal philosophy will be especially appreciated by scholars, teachers, and students in the fields of political philosophy, legal philosophy, and the law generally. (shrink)
This book sets out to re-examine the foundations of Thomas Hobbes’s political philosophy, and to develop a Hobbesian normative theory of international relations. Its central thesis is that two concepts – anarchy and authority – constitute the core of Hobbes's political philosophy whose aim is to justify the state. The Hobbesian state is a type of authority (juridical, public, coercive, and supreme) which emerges under conditions of anarchy ('state of nature'). A state-of-nature argument makes a difference because it justifies authority (...) without appeal to moral obligation. The book shows that the closest analogue of a Hobbesian authority in international relations is Kant's confederation of free states, where states enjoy 'anarchical' (equal) freedom. At present, this crucial form of freedom is being threatened by economic processes of globalisation, and by the resurgence of private authority across state borders. (shrink)
International organizations such as the UN, EU and IMF play an increasingly important role in international politics. Fully revised and updated, this broad-ranging text provides a systematic theoretical and empirical introduction to the structure, policies and performance of international organizations.
Modern legal theory contains a wide range of approaches and topics: from economic analysis of law to feminist legal theory to traditional analytical legal philosophy to a range of theories about justice. This healthy variety of jurisprudential work has created a problem: students and theorists working in one tradition may have difficulty understanding the concepts and terminology of a different tradition. This book works to make terminology and ways of thinking accessible. This dictionary covers topics from 'the autonomy of law' (...) to the 'will theory of rights', from 'autopoiesis' to 'wealth maximization', and from 'John Austin' to 'Ludwig Wittgenstein'. The most important concepts and ideas are presented in a simple dictionary format. There are also many longer entries, where the initial definition gives an accessible explanation, but the entry goes on to give more detailed information about the history of an idea and the debates currently surrounding it. (shrink)
Biobanks are proliferating rapidly worldwide because they are powerful tools and organisational structures for undertaking medical research. By linking samples to data on the health of individuals, it is anticipated that biobanks will be used to explore the relationship between genes, environment and lifestyle for many diseases, as well as the potential of individually-tailored drug treatments based on genetic predisposition. However, they also raise considerable challenges for existing legal frameworks and research governance structures. This book critically examines the current governance (...) structures in place for biobanks in England and Wales. It shows that the technologies, techniques and practices involved in biobanking do not always conform neatly to existing legal principles and frameworks that apply to other areas of medical research. Using a socio-legal approach, including interview data gathered from the scientific community, this book provides unique insights and makes recommendations about appropriate governance mechanisms for biobanking in the future. It also explores the issues around the secondary use of information, such as consent and how to protect privacy, when biobanks are accessed by a number of different third parties. These issues have relevance both within England and Wales and to a wide international audience, as well as for other areas where large datasets are used. (shrink)
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.
Cottingham : Western philosophy : an anthology (second edition) -- Cahoone : from modernism to postmodernism : an anthology (expanded -- Second edition) -- Lafollette : ethics in practice : an anthology (third edition) -- Goodin and Pettit: contemporary political philosophy: an anthology (second -- Edition) -- Eze: african philosophy : an anthology -- McNeill and Feldman : continental philosophy : an anthology -- Kim and Sosa : metaphysics : an anthology -- Lycan and Prinz : mind and cognition : (...) an anthology (third edition) -- Kuhse and Singer : bioethics : an anthology (second edition) -- Cummins and Cummins : minds, brains, and computers : the foundations of -- Cognitive science : an anthology -- Sosa, Kim, Fantl, and McGrath epistemology : an anthology (second edition) -- Kearney and Rasmussen : continental aesthetics, romanticism to -- Postmodernism : an anthology -- Martinich and Sosa : analytic philosophy : an anthology -- Jacquette : philosophy of logic : an anthology -- Jacquette : philosophy of mathematics : an anthology -- Harris, Pratt, and Waters : American philosophies : an anthology -- Emmanuel and Goold: modern philosophy from Descartes to Nietzsche : an anthology -- Scharff and Dusek : philosophy of technology ; the technological condition : an anthology -- Light and Rolston : environmental ethics : an anthology -- Taliaferro and Griffiths : philosophy of religion : an anthology -- Lamarque and Olsen : aesthetics and the philosophy of art; the analytic -- Tradition : an anthology -- John and Lopes : philosophy of literature ; contemporary and classic -- Readings : an anthology -- Cudd and Andreasen : feminist theory : a philosophical anthology -- Carroll and Choi : philosophy of film and motion pictures : an anthology -- Lange : philosophy of science : an anthology -- Shafer-Landau and Cuneo : foundations of ethics : an anthology -- Curren : philosophy of education : an anthology -- Shafer-Landau : ethical theory : an anthology -- Cahn and Meskin : aesthetics : a comprehensive anthology -- McGrew, Alspector-Kelly and Allhoff : the philosophy of science : an historical -- Anthology -- May and Brown : the philosophy of law : classic and contemporary readings -- Forthcoming -- Rosenberg and ARP : philosophy of biology : an anthology. (shrink)
The willful ignorance doctrine says defendants should sometimes be treated as if they know what they don't. This book provides a careful defense of this method of imputing mental states. Though the doctrine is only partly justified and requires reform, it also demonstrates that the criminal law needs more legal fictions of this kind. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing (...) need for change. (shrink)
Constitutionalism in an Age of Diversity James Tully. these ambassadors from Haida Gwaii conciliate the goods which appear irreconcilable to us? To discover the answer, and learn our way around on this strange common ground, we need to ...
* Why should offenders be punished - what should punishments be designed to achieve? * Why has imprisonment become the normal punishment for crime in modern industrial societies? * What is the relationship between theories of punishment and the actual penalties inflicted on offenders? This revised and updated edition of a highly successful text provides a comprehensive account of the ideas and controversies that have arisen within law, philosophy, sociology and criminology about the punishment of criminals. Written in a clear, (...) accessible style, it summarises major philosophical ideas - retribution, rehabilitation, incapacitation - and discusses their strengths and weaknesses. This new edition has been updated throughout including, for example, a new section on recent cultural studies of punishment and on the phenomenon of mass imprisonment that has emerged in the United States. This second edition includes a new chapter on restorative justice, which has developed considerably in theory and in practice since the publication of the first edition. The sociological perspectives of Durkheim, the Marxists, Foucault and their contemporary followers are analysed and assessed. A section on the criminological perspective on punishment looks at the influence of theory on penal policy, and at the impact of penal ideologies on those on whom punishment is inflicted. The contributions of feminist theorists, and the challenges they pose to masculinist accounts of punishment, are included. The concluding chapter presents critiques of the very idea of punishment, and looks at contemporary proposals which could make society's response to crime less dependent on punishment than at present. Understanding Justice has been designed for students from a range of disciplines and is suitable for a variety of crime-related courses in sociology, social policy, law and social work. It will also be useful to professionals in criminal justice agencies and to all those interested in understanding the issues behind public and political debates on punishment. (shrink)
Originally published in 1955, The Moral Decision remains today a fresh, lively, and literate quest for moral guides in the American system of law. Each topic is introduced with a real courtroom case followed by a summary of the uncontroverted facts, the issues before the court, the judge's opinion, and Edmond Cahn's objective and penetrating discussion of the ethical issues involved. The cases chosen operate as prisms, revealing an entire spectrum of moral forces—personal ambitions, group standards, lusts, sufferings, and ideals. (...) A new foreword by Norman Redlich, Dean of the New York University School of Law, affirms the value of The Moral Decision as an authoritative and humane introduction to law and morality. (shrink)
This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, he demonstrates that American jurisprudence has (...) evolved as a collection of themes which reflect broader American intellectual and cultural concerns. (shrink)
Legal Reason describes and explains the process of analogical reasoning, which is the distinctive feature of legal argument. It challenges the prevailing view, urged by Edward Levi, Cass Sunstein, Richard Posner and others, which regards analogical reasoning as logically flawed or as a defective form of deductive reasoning. It shows that analogical reasoning in the law is the same as the reasoning used by all of us routinely in everyday life and that it is a valid form of reasoning derived (...) from the innate human capacity to recognize the general in the particular, on which thought itself depends. The use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. Written for scholars as well as students and persons generally who are interested in law, Legal Reason is written in clear, accessible prose, with many examples drawn from the law and from everyday experience. (shrink)
Why is American punishment so cruel? While in continental Europe great efforts are made to guarantee that prisoners are treated humanely, in America sentences have gotten longer and rehabilitation programs have fallen by the wayside. Western Europe attempts to prepare its criminals for life after prison, whereas many American prisons today leave their inhabitants reduced and debased. In the last quarter of a century, Europe has worked to ensure that the baser human inclination toward vengeance is not reflected by state (...) policy, yet America has shown a systemic drive toward ever increasing levels of harshness in its criminal policies. Why is America so short on mercy? In this deeply researched, comparative work, James Q. Whitman reaches back to the 17th and 18th centuries to trace how and why American and European practices came to diverge. Eschewing the usual historical imprisonment narratives, Whitman focuses instead on intriguing differences in the development of punishment in the age of Western democracy. European traditions of social hierarchy and state power, so consciously rejected by the American colonies, nevertheless supported a more merciful and dignified treatment of offenders. The hierarchical class system on the continent kept alive a tradition of less-degrading "high-status" punishments that eventually became applied across the board in Europe. The distinctly American, draconian regime, on the other hand, grows, Whitman argues, out of America's longstanding distrust of state power and its peculiar, broad-brush sense of egalitarianism. Low-status punishments were evenly meted out to all offenders, regardless of class or standing. America's unrelentingly harsh treatment of trangressors--this "equal opportunity degradation"-- is, in a very real sense, the dark side of the nation's much vaunted individualism. A sobering look at the growing rift between the United States and Europe, Harsh Justice exposes the deep cultural roots of America's degrading punishment practices. (shrink)
This book focuses upon the perennial question of the existence and nature of an obligation to obey the law. Leading writers have, at one time or another, emphasized considerations such as gratitude, 'divine ordering, ' prudence, contract, autonomy, and utility in seeking to justify, or to deny any justification for, some sort of obligation to obey the positive law. The book provides relevant selections from a sampling of the historical approaches to legal obligation taken by writers such as Plato, Augustine, (...) Aquinas, Hobbes, Locke, Hume, Rousseau, Thoreau, Bentham, Marx and Engels, and Martin Luther King, Jr. These classical discussions are augmented by critical questions and commentary, by independent discussions of the question of legal obligation by a wide range of contemporary writers, and by relevant judicial cases discussing matters such as conscientious objection and civil disobedience. (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)
In this sense the collection offers a model of how international collaborative work should proceed. The book is the product of a workshop held at the International Institute for the Sociology of Law (IISL) in Onati, Spain.
In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the role of (...) the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. —Stanley C. Brubaker, Colgate University. (shrink)