Methods, theory and philosophy of law Books

Book SynopsisContributions from members of the German Association for Comparative Law will be among the papers presented at this summer's twentieth International Congress of Comparative Law, to be held for the first time in Asia at Fukuoka, Japan, in July. In a strong range of topics, one focus during the six-day congress will be on questions of multiculturalism and language that concern both comparative law methodology and other legal fields such as family law. Further dealt with will be matters particularly relevant to consumer protection, ranging from choice of court agreements to price control in contracts, duty of information, the regulation of crowd-funding, as well as leisure and travel contracts. Another focus will be on digitalisation's far-reaching economic, societal and legal implications, with questions of data protection in the realm of comparative law accentuated by contributions on the right to be forgotten or current national legal orders. Overall, the volume will reflect the present state of discussions within German jurisprudence. With contributions by:Christina Breunig, Moritz Brinkmann, Johanna Croon-Gestefeld, Anatol Dutta, Katharina Erler, Matthias Fervers, Stefan Grundmann, Beate Gsell, Dirk Hanschel, Wolfgang Hau, Leonhard Hübner, Luca Kaller, Jürgen Kühling, Sebastian Mock, Joachim Münch, David Rüther, Anne Sanders, Bianca Scraback, Stefanie Schmahl, Martin Schmidt-Kessel, Boris Schinkels, Andreas Spickhoff, Klaus Tonner; Jan Thiessen, Tobias H. Tröger, Lars Viellechner, Marc-Philippe Weller, Matthias Weller, Bettina Weisser

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Book SynopsisJedem sind sog. "Nudges" schon begegnet. Diese zwingen kein bestimmtes Verhalten auf, wollen aber in eine bestimmte Richtung schupsen ("to nudge"). Stephan Gerg untersucht die verfassungsrechtlichen Grenzen, wenn die öffentliche Hand auf den Bürger unbewusst oder nur halb bewusst durch "Nudges" und damit abseits von Ge- und Verboten sowie wirtschaftlichen Anreizen einwirkt. Hierzu zählen beispielweise Moralappelle, das Einwirken auf den Bürger durch sozialen Druck oder eine Widerspruchslösung im Organspenderecht. Ausgehend von einem juristisch definierten Begriff des Nudgings sollen anhand einer ebenfalls neuen Typologie die verfassungsrechtlichen Maßstäbe untersucht werden - insbesondere die grundrechtlichen Grenzen, der Vorbehalt des Gesetzes und der effektive Rechtsschutz. Im Mittelpunkt steht dabei die Besonderheit des Einwirkens auf die innere Autonomie, die Möglichkeit, den Willen des Bürgers über verborgene oder halb verborgene Beeinflussungspfade zu lenken, um ihm zu "besseren Entscheidungen" zu verhelfen. Wird bereits der Wille des Adressaten beeinflusst, braucht es keine Ver- oder Gebote mehr. Doch der demokratische Rechtsstaat spielt mit offenen Karten. In den Worten des zitierten Goethe ist keiner mehr Sklave, als der sich für frei hält, ohne es zu sein.

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Book SynopsisThis book, which originated from the broadly held view that there is a lack of Rule-of-law in Mexico, and from the emphasis of traditional academia on cultural elements as the main explanation, explores the question of whether there is any relationship between the system of constitutional review ― and thus the ‘law’ as such ― and the level of Rule-of-law in a given state. To do so, it elaborates a theoretical model for achieving Rule-of-law and compares it to the constitutional review systems of the United States, the Federal Republic of Germany, and Mexico. The study concludes that the two former states correspond to the model, while the latter does not. This is fundamentally due to the role each legal system assigns to ordinary jurisdiction in carrying out constitutional review. Whereas the US and Germany have fostered the policy that constitutional review regarding the enforcement of basic rights is the responsibility of ordinary courts, Mexico has relied too heavily on the specialized constitutional jurisdiction. Table of Contents1. General Introduction.- 2. Rule-of-law and Judicial Federalism: The Role of Ordinary Courts in the Enforcement of Constitutional Rights.- 3. Constitutional Review in the United States of America: Does “Diffused” mean Complete Decentralization?.- 4. The German System of Constitutional Review: Prototype of a Concentrated Model?.- 5. Constitutional Review in Mexico: A Best of All Worlds Solution?.- 6. General Conclusions.

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Book SynopsisThis new English translation of Solov’ëv’s principal ethical treatise, written in his later years, presents Solov’ëv’s mature views on a host of topics ranging from a critique of individualistic ethical systems to the death penalty, the meaning of war, animal rights, and environmentalism. Written for the educated public rather than for a narrow circle of specialists, Solov’ëv’s work largely avoids technical vocabulary while illustrating his points with references to classical literature from the ancient Greeks to Goethe. Although written from a deeply held Christian viewpoint, Solov’ëv emphasizes the turn from his earlier position, now allegedly developing the independence of moral philosophy from metaphysics and revealed religion. Solov’ëv sees the formal universality of the idea of the moral good in all human beings, albeit that this idea is bereft of material content. This first new English-language translation in a century makes a unique contribution to the study of Solov’ëv’s thought. It uses the text of the second edition published in 1899 as its main text, but provides the variations and additions from the earlier versions of each chapter in running notes. Other unique features of this translation are that the pagination of the widely available 1914 edition is provided in the text, and the sources of Solov’ëv’s numerous Biblical quotations and references as well as literary and historical allusions.Trade Review“The translator of this new, highly readable edition of The Justification of the Moral Good, has used the existing English, French and German translations to inform his own, providing detailed notes about how the text changed over its various re-writes by Solovyov. His new edition is likely to serve as the source text for English language scholars and interested readers for years to come, combining an unfussy style with an expert’s insights into Solovyov’s changing writing and overall worldview.” (Andre van Loon, The Berlin Review of Books, berlinbooks.org, September, 2015)Table of ContentsPreface to the Second Edition.- Preface to the First Edition.- Introduction: Moral Philosophy as an Independent Discipline.- Chapter 1: The Original Data of Morality.- Chapter 2: The Ascetic Principle in Morality.- Chapter 3: Pity and Altruism.- Chapter 4: The Religious Principle in Morality.- Chapter 5: On Virtues.- Chapter 6: Pseudo Principles of Practical Philosophy.- Chapter 7: The Unity of Moral Foundations.- Chapter 8: The Unconditional Principle of Morality.- Chapter 9: The Reality of the Moral Order.- Chapter 10: The Individual and Society.- Chapter 11: The Principal Eras in the Historical Development of Personal-Social Consciousness.- Chapter 12: Abstract Subjectivism in Morality.- Chapter 13: The Moral Norm of Sociality.- Chapter 14: The National Question from the Moral Point of View.- Chapter 15: The Penal Question from the Moral Point of View.- Chapter 16: The Economic Question from the Moral Point of View.- Chapter 17: Morality and Legal Right.- Chapter 18: The Meaning of War.- Chapter 19: The Moral Organization of Humanity as a Whole.- Chapter 20: Conclusion: The Definitive Determination of the Moral Meaning of Life and the Transition to Theoretical Philosophy.

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Book SynopsisThe sole available comprehensive history of social law and the model of social welfare in Germany. The book explains the origins since the medieval times, but concentrates on the 19th and 20th centuries, especially on the introduction of the social insurance 1881-1889, of the expansion of the system in the Weimar Republic, under the Nazi-System and after World War II in the FRG and the GDR. The system of social welfare in Germany is one of the pillars of economic stability.Table of ContentsIntroduction.- Social Protection in the Middle Ages and in the Early Modern State: Alms, Poor Relief, Care, Social Help.- Social Policy in the Empire: The Insurance Solution.- The First World War.- The Weimar Republic.- The Nazi State.- The Post-War Period, the Federal Republic, and the German Democratic Republic.- Social Law as a Scientific Discipline.- Europeanization of Social Law.- Long Term Perspectives for Social Protection.- References.- Index.

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Book SynopsisAuthors Costa and Zolo share the conviction that a proper understanding of the rule of law today requires reference to a global problematic horizon. This book offers some relevant guides for orienting the reader through a political and legal debate where the rule of law (and the doctrine of human rights) is a concept both controversial and significant at the national and international levels.Table of ContentsIntroductions. Theory and critique of the rule of law, Danilo Zolo. The rule of law: an historical introduction, Pietro Costa. Part I: The European and the North-American historical experiences. The rule of law and the ‘liberties of the English’. The interpretation by Albert Venn Dicey, Emilio Santoro. Popular sovereignty, rule of law and ‘rule of judges’ in the United States of America, Brunella Casalini. Rechtsstaat and individual rights in German constitutional history, Gustavo Gozzi. État de droit and national sovereignty in France, Alain Laquièze. Rechtsstaat and constitutional justice in Austria. Hans Kelsen’s contribution, Giorgio Bongiovanni. Part II: The contemporary theoretical debate. The rule of law between past and future, Luigi Ferrajoli. Beyond the rule law: tyranny of judges or anarchy of lawyers?, Pier Paolo Portinaro. Rule of law and gender identity, Anna Loretoni. Machiavelli, the republican tradition and the rule of law, Luca Baccelli. Rule of law and spontaneous order. Bruno Leoni and Friedrich von Hayek’s criticism of the Euro-continental rule of law, Maria Chiara Pievatolo. Part III: Rule of law and colonialism. Rule of law and natives in North America, Bartolomé Clavero. The colonial model of the rule of law: the African constitution in Guinea, Carlos Petit. Part IV: Rule of law and Islamic culture. Islamic perspectives on constitutionalism, Raja Bahlul. The rule of morally constrained law. The case of contemporary Egypt, Baudouin Dupret. Part V: Rule of law and oriental cultures. ‘Asian values’ and the rule of law, Alice Ehr-Soon Tay. The rule of law and Indian society. From colonialism to post-colonialism, Ananta Kumar Giri. The Chinese legal tradition and the European spirit of the rule of law, Wu Shu-chen. Modern constitutional development in China, Lin Feng. Human rightsand the rule of law in contemporary Chinese legal philosophy and political practice, Wang Zhenmin and Li Zhenghui. Appendix. Bibliographical essay, Francesco Paolo Vertova. The authors. Name index.

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Book SynopsisHow do you describe cyberspace comprehensively?This book examines the relationship between cyberspace and sovereignty as understood by jurists and economists. The author transforms and abstracts cyberspace from the perspective of science and technology into the subject, object, platform, and activity in the field of philosophy. From the three dimensions of 'ontology' (cognition of cyberspace and information), 'epistemology' (sovereignty evolution), and 'methodology' (theoretical refinement), he uses international law, philosophy of science and technology, political philosophy, cyber security, and information entropy to conduct cross-disciplinary research on cyberspace and sovereignty to find a scientific and accurate methodology. Cyberspace sovereignty is the extension of modern state sovereignty. Only by firmly establishing the rule of law of cyberspace sovereignty can we reduce cyber conflicts and cybercrimes, oppose cyber hegemony, and prevent cyber war. The purpose of investigating cyberspace and sovereignty is to plan good laws and good governance. This book argues that cyberspace has sovereignty, sovereignty governs cyberspace, and cyberspace governance depends on comprehensive planning. This is a new theory of political philosophy and sovereignty law.Table of ContentsNoumenon: Thing-in-Itself: Ontology of Cyberspace; Cyberspace Evolution; Cyberspace Security; Cyberspace Sovereignty; Epistemology: The Consideration of Cyberspace Order; The History of Cyberspace Legislation; The Rule of Law in Cyberspace Sovereignty; Methodology: Cyberspace and Order Coordination; Cyberspace and Overall Planning Entropy; The Overall Planning of Cyberspace Justice;

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Book SynopsisThis book examines the law in relation to how it has responded to sexual and gender issues in the context of Hong Kong, and addresses the implications of those responses for the global context. It aims to develop a localized theory of justice which enables the analysis of multiple socio-legal issues arising in Hong Kong, a predominantly Han-Chinese society in Greater China, while also offering formulations for corresponding solutions. Unlike other books on Hong Kong jurisprudence and socio-legal studies, this book not only compares and contrasts different theories of justice, but also attempts to generate a philosophical perspective which can synchronize and re-organize a range of theoretical components via the lens of localization. The author investigates theories of justice developed, respectively, by Rawls, Deleuze, Lacan, Žižek and from the perspective of Mahāyāna Buddhism, as well as (Orthodox) Han-Chinese Confucianism and Daoism. The book applies these theoretical perspectives in analyzing different socio-legal issues in post-97 Hong Kong, including transgender rights to marriage, domestic violence, sexual assault, child sexual abuse and race. The book concludes by proposing singular possible strategies, which include Degenderization, Desexualization, De-ageing, by which justice(s) can hopefully be re-manufactured and challenged. This book is relevant to researchers and students of law, philosophy, sociology, gender studies and cultural studies. Table of ContentsChapter 1: Beyond Colonialism: Osmotic Restruction of Gender / Sexual Justice in Hong Kong.- Chapter 2: De / Sexing Fa / Law: Development of an Indigenous Legal Theory of Sexual Justice in Hong Kong.- Chapter 3: Beyond Globalization and Localization: Articulating a Theory of Justice in Han-Chinese Culture.- Part 2: Becoming Justice, Desiring Transformation.- Chapter 4: Simularizing Vijnana and Desire, Repeating Yi / Justice: Transplanting Deleuzean Becoming into the Machine of Hong Kong Anti-Domestic Violence Law.- Chapter 5: Desiring Justce, Acting Jnana: Transforming the Legal Transsexual Fantasy from the Perspectives of Žižekian and Mahayana Buddhist Theory.- Chapter 6: De-aging Family Law: Re-engineering the Children-Adult / Parents Machine.- Part 3. Desexualizing Law, De-aging Subjects.- Chapter 7: Confession of Law? A Critical Perspective on the Production of the Child Subject in Hong Kong Law in Control of Child Sexual Abuse.- Chapter 8: Deterritorializing Sexuality, Act(less)ing Justice: Žižekian / Deleuzean / Lao Zi’s Perspectives on Hong Kong’s Rape Law Reform.- Part 4. Undesiring Control, Respecting Multiplicities.- Chapter 9: Un/Controlling Desire, Becoming Others: Negotiating Justice in the Hong Kong Milieu of Mainland Pregnant Women Influx.- Chapter 10. Un/Desiring Data: Deinformatizing Human Subjects:Decontrolling the Individual in the Age of Internet.- Prologue.

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Book SynopsisKey contemporary discussions of distributive justice have formulated egalitarian approaches in terms of responsibility. But this approach, Hurley contends, has ignored the way our understanding of responsibility constrains the roles it can actually play within distributive justice.Trade ReviewLuck-neutralization is a central concept in contemporary work on distributive justice, and thus moral responsibility is also a central concept (insofar as luck is what one is not morally responsible for). It is therefore fruitful and illuminating to apply important insights from responsibility theory to various theories of distributive justice. The book is written in a lively style, Susan Hurley is remarkably well-versed in the literature on free will and moral responsibility as well as distributive justice, and the ideas are vibrant and provocative...a path-breaking book. -- John Martin Fischer, Professor of Philosophy, University of California RiversideHurley's arguments are highly original. This is an impressive and insightful book. -- Peter Vallentyne, Professor of Philosophy, Virginia Commonwealth UniversityExceedingly rigorous...at the same time, exceptionally reader-friendly...One of the best critical introductions to the...problem of determinism and moral responsibility on the market...[this book] deserve[s] to be read by all responsibility enthusiasts...Eye-opening and exciting...incisive...carefully crafted...ground-clearing as well as path-breaking, [it is]...from start to finish, a true masterpiece of conceptual clarity and tidiness...Shrewdly analyses the relevant concepts...defuses bothersome misapprehensions and misapplications...[and] deftly pulls together the remaining strands...Deeply thought-provoking...[Both egalitarians and inegalitarians] need to rethink their positions. -- Kristjan Kristjansson * Mind *Hurley's penetrating treatment of [responsibility and justice] is bound to have a considerable influence on these fields. I found her subtle taxonomy of reason-responsiveness views especially instructive, and her critique of the idea that responsibility is 'essentially impossible' seems to me a tour de force. Further, the defense of a 'bias-neutralizing' conception of justice in favor of 'luck neutralizing' conceptions will surely have to be reckoned with by anyone who works in these fields. -- Gary Watson * Philosophy and Phenomenological Research *Hurley does a great service to the theory of egalitarianism by doing what most authors have shied away from doing so far, namely, opening the black box of 'responsibility' in order to examine how the various conceptions of responsibility can inform the debate about the just allocation of resources in an egalitarian society. -- Marc Fleurbaey * Philosophical Books *An admirable piece of work...Hurley's book provides a very insightful discussion of the relationship between luck and justice (among several other issues). She has done egalitarians a great service in clarifying the relation between egalitarianism and luck-neutralization. -- Kaspar Lippert-Rasmussen * Philosophy, Politics, and Economics *Hurley's book is a first-rate achievement. It is uniformly informative and clarifying. -- Kaspar Lippert-Rasmussen * Philosophical Books *Hurley's central thesis, that responsibility and luck-neutralization are not the basis of egalitarianism, is original and correct...To my mind, Hurley's thesis engages with many statements that leading egalitarians have put in writing. That thesis, we should recall, is obvious only once Hurley makes her compelling argument for that thesis...The book is dense with thought-provoking ideas. -- Nir Eyal * Economics and Philosophy *Table of ContentsIntroduction: Responsibility and Justice I. RESPONSIBILITY 1. Philosophical Landscape: The New Articulation of Responsibility 2. Why Alternate Sequences Are Irrelevant to Responsibility 3. Why Responsibility Is Not Essentially Impossible 4. Responsibility, Luck, and the "Natural Lottery" II. JUSTICE 5. Philosophical Landscape: The Luck-Neutralizing Approach to Distributive Justice 6. Why the Aim to Neutralize Luck Cannot Provide a Basis for Egalitarianism 7. Roemer on Responsibility and Equality 8. The Currency of Distributive Justice and Incentive Inequality 9. The Real Roles of Responsibility in Justice 10 From Ignorance to Maximin: A Bias-Neutralizing Alternative Appendix: Outline of the Arguments Bibliography Index

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Book SynopsisThe essays in this collection grew out of a series of invited lectures given in France on the nature of justice and the law. They represent a reflection on the relationship of the juridical and the philosophical concept of right, situated between moral philosophy and politics.

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Book SynopsisAn original book offering a unique theoretical approach, Re-examining Insolvency Law and Theory analyses the important role that legal theory plays in the development of insolvency law. It explores how law and theory are able to respond to issues of financial distress in the 21st century and questions how insolvency law could develop to address contemporary challenges.Re-examining Insolvency Law and Theory brings together international experts in insolvency, who consider the key conceptual influences that have impacted insolvency law since the beginning of the 21st century. Chapters address a number of theoretical perspectives, divided into overall philosophical considerations, theoretical criticisms of the internal mechanisms of insolvency law, and how external theoretical paradigms could be used to shift perspectives on insolvency frameworks. Presenting a distinctive and conceptually holistic approach, this erudite book provides an essential contribution to an ever evolving area of legal research and practice.Re-examining Insolvency Law and Theory is a crucial read for academics and students interested in insolvency law both in the UK and internationally. It will also be highly insightful for legal professionals and practitioners specialising in insolvency law.Trade Review‘This important new text offers clear and accessible theoretical perspectives on insolvency law, bringing varied perspectives together through readable introductory chapters. At one time the main insolvency law theories were well-rehearsed and it was necessary to search far and wide for the fresh insights that this book brings in one volume. In discussion of key theoretical concepts, theorists and perspectives from other disciplines this text will be extremely valuable for researchers with interests in insolvency law and will inspire further reading.’ -- Rebecca Parry, Nottingham Trent University, UK‘This collection is a very welcome contribution to scholarship in relation to the law of corporate insolvency and rescue. The doctrinal features of this body of law are complex and challenging. The addition of a theoretical analysis is long overdue, partly I am sure because of the intellectual challenges of combining theory with doctrinal clarity. The authors have done so admirably, not surprising to those of us who are aware of the standing and reputation of many of the contributors to the collection. This is a volume which is a “must have” for all interested in the subject.’ -- Irene Lynch Fannon, University College Cork, IrelandTable of ContentsContents: 1 Introduction: insolvency theory for a new age 1 Emilie Ghio, John M. Wood and Jennifer L. L. Gant PART I PHILOSOPHICAL CONSIDERATIONS AND INFLUENCES ON INSOLVENCY LAW 2 Insolvency law and morality 8 Paul Omar 3 The liberalisation of bankruptcy law 24 David Milman 4 Insolvency law and the legal feminist movement 40 Lézelle Jacobs 5 A Dworkinian approach to insolvency law 55 Catherine Brown and Colin Anderson 6 A Nietzchean approach to debt and human thought 72 John Tribe 7 A Rawlsian approach to preventive restructuring 96 Stathis Potamitis and Xenophon Paparrigopoulos PART II AN INWARD-LOOKING STUDY OF INSOLVENCY LAW 8 Decision theory and insolvency law 116 John M. Wood 9 The competing goals theory and insolvency law 133 Jason Harris 10 Successor liability theory and insolvency law 153 Laura N. Coordes 11 Vulnerability theory and insolvency law 166 Jennifer L. L. Gant PART III AN OUTWARD-LOOKING STUDY OF INSOLVENCY LAW 12 Insolvency law through the lens of human rights theories 190 Eugenio Vaccari and Tara Van Ho 13 Insolvency law through the lens of company law theories 216 Jonathan Hardman 14 Insolvency law through the lens of a contract theory of restructuring 228 Stephan Madaus 15 Insolvency law through the lens of property law theories 244 Alisdair MacPherson 16 Insolvency law through the lens of psychology theories 262 Emilie Ghio 17 Concluding remarks: new ways to theorise about insolvency and rescue 281 Jennifer L. L. Gant, Emilie Ghio and John M. Wood Index 298

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Book SynopsisIn this highly topical introduction, Professor Raymond Wacks explains and evaluates the leading theories of justice that have shaped our societies and their legislative and judicial systems, and explores the extent to which fundamental notions like fairness, equality and freedom are reflected in contemporary society. By analysing some of the world’s most pressing challenges, including terrorism, corruption and migration, Justice: A Beginner’s Guide shows how these ideas are applied in practice – and how far we still have to go to achieve social justice.Trade Review‘The concept of justice is seldom given the attention it deserves in legal education. In part this is due to the large number of indigestible treatises on this subject that act as a deterrent to teachers and students. Raymond Wacks’ Beginner’s Guide seeks to remedy this by providing a clearly written and argued study of the principal debates and writers in the field. Although the emphasis is on the theory of justice, Wacks’ thoughtful illustrations of justice in practice ensures that the reader is made aware of the pivotal role played by the concept of justice in the ordering of society.’ -- John Dugard, Emeritus Professor of Law and former member of the UN International Law Commission"A wide-ranging and highly readable examination of key ideas in the evolution of thought on social justice." -- Albie Sachs – Former Justice of the Constitutional Court of South Africa

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Book SynopsisThe reign of paper files would seem to be over once files are reduced to the status of icons on computer screens, but Vismann's book, which examines the impact of the file on Western institutions throughout history, shows how the creation of order in medieval and early modern administrations makes its returns in computer architecture.Trade Review"Cornelia Vismann's extraordinary Files . . . presents a methodology for addressing the relationship between media technologies and politics that is often absent, or at least shadowy, in materialist media theory of the Kittlerian style."—Seb Franklin, The Year's Work in Critical and Cultural Theory"Vismann's erudite and attentive analysis shows clear awareness of the danger of both a perfect order (where everything is registered, recorded) and that of a deconstruction possible turning into an order of its own kind with potentially its own para-juridical legend."—Thanos Zartaloudis, Parallax"Vismann's Files is a highly original and theoretical project that combines the thinking of Derrida (on law and its enforcement) and Foucault (on juridical discourse and 'gouvernmentalité') with specific motifs of German media theory as developed by Friedrich Kittler. The book is a state-of-the-art contribution to the analysis of culture that allows us to envision a truly new interrelation between historical research and a comprehensive philosophy of culture that is yet to come." —Rüdiger Campe, Yale UniversityTable of Contents@fmct:Contents @toc4:Translator's Note iii Preface: Off the Record iii @toc2:Chapter 1: Law's Writing Lessons 000 Chapter 2: From Translating to Legislating 000 Chapter 3: From Documents to Records 000 Chapter 4: Governmental Practices 000 Chapter 5: From the Bureau to Data Protection 000 Chapter 6: Files-Icons 000 @toc4:Notes 000 Index 000

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Trade Review'Joel Feinberg is a political and social philosopher of major importance ... Virtually everyone who has written about legal and moral responsibility during the past fifteen years owes him a considerable debt.' Harvard Law ReviewTable of ContentsGeneral Introduction: The Basic Question of the Book * The Concept of Moral Legitimacy * The Idea of a Liberty-Limiting Prinviple * Commonly Proposed Liberty-Limiting Principles * Liberalism * Methodology * Primary and Derrivative Crimes * Alternatives to the Criminal Law * Skepticism: VOLUME ONE: HARM TO OTHERS I Harms as Setbacks to Interest: Meaning of "Harm" * Welfare Interests and Ulterior Interests * Interests and Wants * Harms, Hurts, and Offenses * The Manner in which Acts and Other Events Affect Interests When They Do Harm * The Concept of an Interest Network * Legally Protectable Interests *: II Puzzling Cases: Moral Harm * Other-Regarding Interests and Vicarious Harms * Death and Posthumous Harms * Surviving Interests * The Proper Subject of Surviving Interests * Doomed Interest and the Dating of Harm * A Note on Posthumous Wrongs * Birth and Prenatal Harms *: III Harming as Wronging: The Verbal Forms: To Harm and to Wrong * Harming and Injuring * Moral Indefensibility * Harming as Right-Violating * Harm and Consent: the Volenti maxim * The Concept of a Victim * The "Casual Component" in Harming *: IV Failing to Prevent Harm: East Rescue and the Bad Samaritan * The Confusion of Active Aid with Gratuitous Benefit * Lord macauley's Line-Drawing Problem * Omissions an Other Inactions * Are Legal Duties to Rescue Undue Interference with Liberty? * The Moral Significance of Causation * The Consequences of Omissions * The Exclusion of Causally Irrelevant Necessary Conditions * Summary *: V Assessing and Comparing Harms: Mediating Maxims for the Application of the Harm Principle * The Magnitude of the Harm * The Probability of the Harm * Aggregative Harms * Statistical Discrimination and the Net Reductiom of Harm * The Relative Importance of the Harm * The Interest in Liberty on the Scales * Summary of Restrictions on the Harm Principle *: VI Fairly Imputing Harms: Comparative Interests * Harm to Public Interests * Accumulative Harms * Environmental Pollution as a Public Accumulative Harm * Imitative Harms * Summary of Additional Restrictions to the Harm Principle *: Notes * Index

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Book SynopsisIn Philosophy of Law, Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law--an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Marmor argues that thTrade Review"This superb book, written by one of the world's foremost philosophers of law, is a highly welcome addition to the jurisprudential literature, one marked by its immense pedagogical value and scholarly excellence. It provides, in clear, accessible language, an informed, sympathetic treatment of all the main issues and theories within the discipline of contemporary analytic legal philosophy. Not only will it be of immense value to the student first encountering the field, it will equally engage the interest of the seasoned scholar and advanced student keen to know Marmor's own, distinctive take on these important matters. A remarkable achievement."—W. J. Waluchow, author of A Common Law Theory of Judicial Review"This is an excellent book. The quality of argumentation is first-class, and readers will gain significant benefits from Marmor's careful, well-argued, and thorough analysis."—Brian Bix, University of MinnesotaTable of ContentsIntroduction 1 Chapter One: A Pure Theory of Law? 12 Chapter Two: Social Rules at the Foundations of Law 35 Chapter Three: Authority, Conventions, and the Normativity of Law 60 Chapter Four: Is Law Determined by Morality? 84 Chapter Five: Is Legal Philosophy Normative? 109 Chapter Six: The Language of Law 136 Bibliography 161 Index 167

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Book SynopsisThe Philosophy of Law is a broad-reaching text that guides readers through the basic analytical and normative issues in the field, highlighting key historical and contemporary thinkers and offering a unified treatment of the various issues in the philosophy of law.Trade Review"Mark Murphy is the most interesting and original natural law theorist of his generation, and this wide-ranging, learned, and lucid introduction to legal philosophy will be the text of choice for any student or philosopher who wants a philosophically sophisticated survey of the major topics that, at the same time, makes clear the continuing attraction of the natural law tradition." Brian Leiter, University of Texas at Austin "Murphy executes a masterly and enlightening challenge to fashionable claims that ‘all is not well’ with the law and its philosophy. Fully accessible to general audiences, his book will also inform and engage the specialist reader." William A. Edmundson, Georgia State University "Philosophy of Law itself is a well designed book on several levels ... Murphy hooks you from the start." Stuart Hannabuss, Aberdeen Buisness School, Robert Gordon University “A concise, well balanced, and articulate discussion. The author has the capacity to present complex material with ease to its audience… A highly captivating interpretation of the philosophy of law” Internet Law Book ReviewsTable of ContentsAcknowledgments. Introduction. 0.1 Philosophy, the Familiar, and the Unfamiliar. 0.2 What Are Our Commonplaces About Law?. 0.3 The Course of Our Inquiry. For Further Reading. Chapter 1: Analytical Fundamentals: The Concept of Law. 1.1 The Question, and its Importance. 1.2 Basic Austinianism. 1.3 Positivist Lessons. 1.4 Hartian Positivism. 1.5 Interlude: Hard and Soft Positivisms. 1.6 Natural Law Theory. 1.7 Fuller’s Procedural Natural Law Theory. 1.8 Aquinas’s Substantive Natural Law Theory. 1.9 A Suggested Resolution. Appendix: Why is it Called “Natural Law Theory”?. For Further Reading. Chapter 2: Normative Fundamentals: The Basic Roles of Paradigmatic Legal Systems. 2.1 What are the Basic Roles of Paradigmatic Legal Systems?. 2.2 The Role of Subject. 2.3 The Role of Legislator. 2.4 The Role of Judge. For Further Reading. Chapter 3: The Aims of Law. 3.1 The Aims of Law and the Common Good. 3.2 The Harm-to-others Principle. 3.3 Challenges to the Harm-to-others Principle: Types of Harm. 3.4 Challenges to the Harm-to-others Principle: The Party Armed. 3.5 Morals Legislation. For Further Reading. 4 The Nature and Aims of the Criminal Law. 4.1 Types of Legal Norms. 4.2 Crime and Punishment. 4.3 Two Normative Theories of Punishment. 4.4 Justification and Excuse. For Further Reading. 5 The Nature and Aims of Tort Law. 5.1 Torts and Crimes. 5.2 Torts and Damages. 5.3 Economic and Justice Accounts of Negligence Torts. 5.4 Elements of the Negligence Tort. 5.5 Damages. 5.6 Intentional Torts and Torts of Strict Liability. For Further Reading. 6 Challenging the Law. 6.1 Putting Legal Roles to the Question. 6.2 Against the Role of Subject: Philosophical Anarchism. 6.3 Against the Role of Legislator: Marxism / Feminist Legal Theory / Critical Race Theory. 6.4 Against the Role of Judge: American Legal Realism / Critical Legal studies. For Further Reading. Index.

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Book SynopsisThe Rule of Recognition and the U.S. Constitution is a volume of original essays that discuss the applicability of Hart''s rule of recognition model of a legal system to U.S. constitutional law. The contributors are leading scholars in analytical jurisprudence and constitutional theory, including Matthew Adler, Larry Alexander, Mitchell Berman, Michael Dorf, Kent Greenawalt, Richard Fallon, Michael Green, Kenneth Einar Himma, Stephen Perry, Frederick Schauer, Scott Shapiro, Jeremy Waldron, and Wil Waluchow. The volume makes a contribution both in jurisprudence, using the U.S. as a test case that highlights the strengths and limitations of the rule of recognition model; and in constitutional theory, by showing how the model can illuminate topics such as the role of the Supreme Court, the constitutional status of precedent, the legitimacy of unwritten sources of constitutional law, the choice of methods for interpreting the text of the Constitution, and popular constitutionalism.

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Book SynopsisKames presents a history of law as a history of the progress of humankind from savage to civil society.

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Book SynopsisAs a central part of the regulation of contemporary economies, intellectual property (IP) is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. But if IP is power, what kind of power is it, and what does it do? Building on the work of Michel Foucault, Gordon Hull examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization. He argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. This work should be read by anyone interested in understanding why the struggle to conceptualize IP matters.Trade Review'Tracing the shifting logic of intellectual property over the centuries, Gordon Hull demonstrates that neoliberalism is less concerned with markets or freedom than it is with the economization of everyday life. This groundbreaking genealogy combines Foucauldian theory of biopower with a rich empirical analysis to illuminate how norms and technologies of ownership are now at stake in the shaping of our very subjectivity.' William Davies, Goldsmiths, University of London and author of The Limits of Neoliberalism'A fascinating and richly detailed examination of contested and changing conceptions of intellectual property in the context of shifting regimes of biopower. A must-read for anyone interested in biopolitics and American law.' Ladelle McWhorter, University of Richmond and author of Racism and Sexual Oppression in Anglo-AmericaTable of Contents1. Introduction; 2. Theorizing intellectual property; 3. Copyright; 4. Trademark; 5. Patents; 6. Conclusion: politics was already in the way; 7. Works Cited.

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Book SynopsisFritjof Capra and Ugo Mattei argue that at the root of many of the environmental, economic, and social crises we face today is a legal system based on an obsolete worldview. Capra, a bestselling author, physicist, and systems theorist, and Mattei, a distinguished legal scholar, explain how, by incorporating concepts from modern science, the law can become an integral part of bringing about a better world, rather than facilitating its destruction.This is the first book to trace the fascinating parallel history of law and science from antiquity to modern times, showing how the two disciplines have always influenced each other - until recently. In the past few decades, science has shifted from seeing the natural world as a kind of cosmic machine best understood by analyzing each cog and sprocket to a systems perspective that views the world as a vast network of fluid communities and studies their dynamic interactions. The concept of ecology exemplifies this approach. But law is stuck in the old mechanistic paradigm: the world is simply a collection of discrete parts, and ownership of these parts is an individual right, protected by the state. Capra and Mattei show that this has led to overconsumption, pollution, and a general disregard on the part of the powerful for the common good.Capra and Mattei outline the basic concepts and structures of a legal order consistent with the ecological principles that sustain life on this planet. This is a profound and visionary reconceptualization of the very foundations of the Western legal system, a kind of Copernican revolution in the law, with profound implications for the future of our planet.

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Book SynopsisThis book argues that classical natural law jurisprudence provides a superior answer to the questions What is law? and How should law be made? rather than those provided by legal positivism and new natural law theories.What is law? How should law be made? Using St. Thomas Aquinas's analogy of God as an architect, Brian McCall argues that classical natural law jurisprudence provides an answer to these questions far superior to those provided by legal positivism or the new natural law theories. The Architecture of Law explores the metaphor of law as an architectural building project, with eternal law as the foundation, natural law as the frame, divine law as the guidance provided by the architect, and human law as the provider of the defining details and ornamentation. Classical jurisprudence is presented as a synthesis of the work of the greatest minds of antiquity and the medieval period, including Cicero, Aristotle, Gratian, Augustine, and Aquinas; the significTrade Review“The book is nothing short of a masterpiece. It is truly a tour de force that articulates and defends the classical understanding of natural law against detractors (and reformers) of both yesteryear and today. With this book, Brian McCall has established himself as, arguably, the leading natural law luminary in American legal academia.” —Ronald J. Colombo, Maurice A. Deane School of Law at Hofstra University“The Architecture of Law makes a masterful contribution to constructive jurisprudence in the best tradition of the ongoing encounter between reason and Christian faith. Erudite yet unpretentious, insightful yet careful, McCall’s account of human lawmaking starts at the beginning, where one should indeed start, and then gradually shows the reader exactly why law is correctly defined, pace most modern accounts, as a ‘dialectic among reason, command, and custom.’ This book offers a challenging, fascinating, but consistent journey for the reader. It is an outstanding piece of work.” —Patrick McKinley Brennan, Villanova University"Drawing on the best resources of Roman law, classical canon law, Catholic theology, perennial philosophy, and positivist, historicist, and natural law jurisprudence, Brian McCall constructs a dynamic account of law that refuses to leave anything important out. Erudite yet unpretentious, this book is the modern jurisprudential equivalent of the greatest medieval cathedrals. Offering shelter to all, it appeals to our capacity to construct law that is worthy of our better angels, while never mistaking men-as-they-happen-to-be for angels." —Patrick Brennan, John F. Scarpa Chair in Catholic Legal Studies, Villanova University“While committed opponents of traditional natural law nay not be convinced, McCall’s presentation is nonetheless extremely lucid, clear and thought-provoking for those who have become uncomfortable with the supposedly self-evident principles of modern jurisprudence—principles which deny any real connection between law and morality and nature.” —Catholic Herald“[The Architecture of Law] is worth reading. Those not immersed in the classical tradition will benefit from this introduction to some of its lesser-known themes. . . . Those who know the tradition well will find in McCall’s expression of it fresh and challenging glosses and close attention to its most vexing questions.” —Law and Liberty“Professor McCall issues a clarion call to return to classical sources, most notable Thomas Aquinas, in order to evaluate and appreciate the essential role of natural law within the whole structure of the law.” —Ecclesiastical Law Journal“. . . a bold, thoughtful, and cogent defense of classical natural law theory and its relevance for the contemporary theory and practice of law. This book deserves wide attention from legal scholars as well as theologians and historians of law.” —Journal of Law and Religion

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Book SynopsisMit seiner Allgemeine Staatslehre reiht sich Hans Kelsen in eine spezifisch deutschsprachige Tradition ein - und doch begründet er mit ihr etwas grundstürzend Neues. Denn das in der prominenten Reihe "Enzyklopädie der Rechts- und Staatswissenschaft" erschienene Werk markiert nicht nur die Auftaktschrift für den sog. Weimarer Richtungs- und Methodenstreit in der Staatsrechtslehre, die Carl Schmitt, Rudolf Smend und Hermann Heller ihrerseits zu Verfassungs- respektive Staatslehren provozieren wird. Sie stellt darüber hinaus - neun Jahre vor der 1934 publizierten Erstauflage der Reine Rechtslehre - die erste zusammenhängende Darstellung der von Kelsen begründeten und gemeinsam mit seinen Schülern ausgeformten "Reinen Rechtslehre" dar. Sie zeigt den 43jährigen Kelsen auf dem Zenit seines Wiener Wirkens und seine "Jungösterreichische Schule der Rechtstheorie" am Ende ihrer Formationsphase.Auf der Grundlage einer "durch Kants Vernunftkritik" bestimmten Methode legt Kelsen dar, dass die herkömmlich unter dem Sammelbegriff der Allgemeinen Staatslehre behandelten disparaten Fragestellungen "durchgehend Probleme der Geltung und Erzeugung einer spezifischen [Rechts-]Ordnung", sprich: Rechtsprobleme sind. Während er die Geltungsfragen, sozusagen den Staat in der Ruhelage, der (Nomo-)Statik zuschlägt, behandelt er die Erzeugungsfragen, also den Staat in der Bewegung, unter dem Aspekt der (Nomo-)Dynamik. Und während die früheren Monografien seine normativistisch-positivistische Lehre nur mittelbar, nämlich durch das Diapositiv der Dekonstruktion der tradierten Staatsrechtslehre erkennen ließen, präsentiert sie Kelsen hier erstmals als vollgültigen Gegenentwurf.

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Book SynopsisThe EU Regulation on a Single Market for Digital Services (Digital Services Act, the ''DSA'') is a comprehensive legal framework to regulate digital services and to tackle illegal activity online across the European Union. The DSA represents one of the main pillars of the EU''s reform of the digital single market. It applies horizontally to online intermediaries operating in the EU, including online platforms such as social media, video-sharing platforms, online marketplaces, and search engines. The EU Digital Services Act: A Commentary serves as a reference work on the DSA, written by experts who have been closely involved in all steps of the law-making process, from the preparation of the proposal to the final negotiations, as well as its subsequent elaboration and application. This commentary provides a comprehensive article-by-article analysis that will allow the reader to navigate the provisions of this new, complex legal act. While being novel, the DSA does not enter a completely

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Book SynopsisSince the proclamation of the Universal Declaration of Human Rights, over 165 countries have incorporated human rights standards into their legal systems: the resulting jurisprudence from diverse cultural traditions creates new dimensions to concepts first articulated in 1948. In this revised second edition, Nihal Jayawickrama draws on extensive sources to encapsulate the judicial interpretation of human rights law in one comprehensive volume. Jayawickrama covers the case law of the superior courts of 103 countries in America, Europe, Africa, Asia, the Caribbean and the Pacific, as well as jurisprudence of human rights monitoring bodies. He analyses the judicial application of human rights law to demonstrate empirically the universality of contemporary human rights norms. This definitive volume is essential for legal practitioners, and government and non-governmental officials, as well as academics and students of both constitutional law and the international law of human rights.Table of ContentsPreface to the second edition; Preface; Table of cases; Part I. Introduction: 1. Historical and juridical background; 2. The international bill of human rights; 3. The domestic protection of human rights; 4. The right to a remedy; Part II. General Principles: 5. Interpretation; 6. Non-discrimination; 7. Limitations; 8. Derogation; Part III. The Substantive Rights: 9. The right of self-determination; 10. The right to life; 11. The right to freedom from torture; 12. The right to freedom from slavery; 13. The right to liberty; 14. The rights of prisoners; 15. The right to freedom of movement; 16. The right to a fair trial; 17. The rights of accused persons; 18. The right to recognition as a person; 19. The right to privacy; 20. The right to freedom of thought; 21. The right to freedom of expression; 22. The right to freedom of assembly; 23. The right to freedom of association; 24. The right to family life; 25. The rights of the child; 26. The right to participate in public life; 27. The right to equality; 28. The rights of minorities; 29. The rights relating to work; 30. The rights relating to social security; 31. The right to an adequate standard of living; 32. The right to health; 33. The right to education; 34. The right to cultural life; 35. The right to property.

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Book SynopsisThis volume brings together the most important writing on torture and the ''war on terror by one of the leading US voices in the torture debate. Philosopher and legal ethicist David Luban reflects on this contentious topic in a powerful sequence of essays including two new and previously unpublished pieces. He analyzes the trade-offs between security and human rights, as well as the connection between torture, humiliation, and human dignity, the fallacy of using ticking bomb scenarios in debates about torture, and the ethics of government lawyers. The book develops an illuminating and novel conception of torture as the use of pain and suffering to communicate absolute dominance over the victim. Factually stimulating and legally informed, this volume provides the clearest analysis to date of the torture debate. It brings the story up to date by discussing the Obama administration''s failure to hold torturers accountable.Trade Review'David Luban has written over the past decade an extraordinarily compelling set of philosophical, legal (and simply human) reflections on what has unfortunately become a defining issue - torture. He raises crucial questions not only about the role of lawyers in legitimizing indefensible practices, but also about broader aspects of moral argument, especially the common practice of relying on 'extreme cases' and 'brainteasers' as alternatives to confronting more mundane (and horrific) realities. The book therefore promises to be important even after that happy day when torture has indeed been eliminated from the world.' Sanford Levinson, University of Texas, Austin'Of all those who have written on themes of justice and power in the aftermath of 9/11, David Luban's work is among the very best. His elegant argumentation and fluid prose effortlessly cross the boundaries between law, philosophy and political theory. Taken together, these essays provide a hugely compelling defence of fundamental rights in the face of those who have sought to weaken longstanding constitutional and moral protections. No one with an interest in society's response to torture or the broader debate on civil liberties can afford to ignore this book.' David Rodin, University of Oxford'If there is but one book to pick from the shelf dealing with the US political crisis over the use of torture, then clearly it is David Luban's. With a merciless dissection of the semantic games played by Washington lawyers and a brilliant discussion of the key questions of law and ethics at the heart of the torture debate, Luban emerges as the subject's undisputed grand master.' Scott Horton, Columbia Law School'David Luban's writing has been indispensable in the torture debates. No one has done more than he has to confront the 'ticking bomb' hypothetical. No one has engaged more deeply with our understanding of what torture is than Luban has in his essay on 'the communicative aspect of torture'. These writings represent perhaps the most serious and sensitive work that has emerged from this grim chapter in America's history.' Jeremy Waldron, New York UniversityTable of ContentsPreface; Part I. Downgrading Rights and Expanding Power During Post-9/11 Panic: 1. The war on terrorism and the end of human rights; 2. Eight fallacies about liberty and security; Part II. The Ticking Bomb as Moral Fantasy and Moral Fraud: 3. Liberalism, torture, and the ticking bomb; 4. Unthinking the ticking bomb; Part III. The Evils of Torture: 5. A communicative conception of torture; 6. Human dignity, humiliation, and torture; 7. Mental torture: a critique of erasures in US law (with Henry Shue); Part IV. Complicity in Torture: 8. The torture lawyers of Washington; 9. Tales of terror: lessons for lawyers from the war on terrorism; 10. An affair to remember.

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Book SynopsisIn recent decades, new international courts and other legal bodies have proliferated as international law has broadened beyond the fields of treaty law and diplomatic relations. This development has not only triggered debate about how authority may be held by institutions beyond the state, but has also thrown into question familiar models of authority found in legal and political philosophy. The essays in this book take a philosophical approach to these developments, debates and questions. In doing so, they seek to clarify the relevant issues underpinning, as well as develop possible solutions to the problem of how legal authority may be constructed beyond the state.Table of ContentsIntroduction Patrick Capps and Henrik Palmer Olsen; 1. The evolution of authority Alan Brudner; 2. The evolution of global authority Patrick Capps; 3. International courts and the building of legal authority beyond the state Henrik Palmer Olsen; 4. Semantic authority, legal change and the dynamics of international law Ingo Venzke; 5. Practical reason and authority beyond the state John Martin Gillroy; 6. Varieties of authority in international law – state-consent, international organisations, courts, experts and citizens Inger-Johanne Sand; 7. The legitimate authority of international courts and its limits – a challenge to Raz's service conception? Andreas Follesdal; 8. Consent, obligation, and the legitimate authority of international law Richard Collins; 9. The International Criminal Court: The New Leviathan? Margaret Martin.

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Book SynopsisPolls suggest up to twenty percent of Americans describe their beliefs as ''libertarian'', but libertarians are often derided as heartless Social Darwinists or naïve idealists. This illuminating handbook brings together scholars from a range of fields (from law to philosophy to politics to economics) and political perspectives (right, left, and center) to consider how classical liberal principles can help us understand and potentially address a variety of pressing social problems including immigration, climate change, the growth of the prison population, and a host of others. Anyone interested in political theory or practical law and politics will find this book an essential resource for understanding this major strand of American politics.Table of ContentsIntroduction; 1. The rise, fall, and renaissance of classical liberalism Ralph Raico; 2. Back the future: new classical liberalism and old social justice Jason Brennan; 3. More and better: resources defined through property and exchange Art Carden; 4. The boundaries of anti-discrimination laws David E. Bernstein; 5. Environmental protection: final frontier or Achilles heel? Jonathon H. Adler; 6. I, Pencil Leonard E. Read; Note from Editor and introduction Lawrence W. Reed; 7. Foot voting and the future of liberty Ilya Somin; 8. Classical liberal administrative law in a progressive world Michael Rappaport; 9. Political libertarianism Jacob T. Levy; 10. The bourgeois argument for freer immigration Fernando R. Tesón; 11. Rationality – what?: misconceptions of neoclassical and behavioral economics Mario J. Rizzo; 12. Property, intellectual property, and regulation James Y. Stern; 13. Classical liberalism and the problem of technological change Justin Hurwitz and Geoffrey A. Manne; 14. Classical liberalism, race and mass incarceration Aziz Huq; 15. Seven problems for classical liberals Louis Michael Seidman; 16. Meeting the fundamental objections to classical liberalism Richard A. Epstein.

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Book SynopsisIn his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration. He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people''s legal entitlements and to confer evenhanded legal justice. Judges try to achieve the control of reason in law, which is manifest in law''s coherence, and to avoid forms of arbitrariness, such as personal moral judgment. Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality.Table of Contents1. The idea of law-like law; 2. Argument in a legal system; 3. Practice of legality; 3.1. Instituted discourse; 3.2. Entrenched pursuit; 3.3. Self-conception; 4. Pursuit of the rule of law; 5. Aspiration and impulse; 5.1. Nomological legality; 5.2. Liberal commitment; 5.3. Failure of legality; 5.4. Dual impulse; 6. Deep duality - formal law; 6.1. Rawls' first view of law; 6.2. A contrary view; 6.3. Law-like formality: Weber; 6.4. Half-right views; 7. Deep duality - law's ideals; 7.1. A contrary view; 7.2. Law-like ideals: Dworkin; 7.3. Halves of a whole; 7.4. Rawls' second view of law; 8. Two perils for law; 8.1. Liberal law's fears; 8.2. Overcoming peril; 8.3. Deeper danger; 8.4. What follows; 9. Fear of free ideals; 9.1. Warring creeds; 9.2. Moral skepticism; 9.3. What's feared; 10. Fear of open form: 10.1. Unsure concepts; 10.2. Linguistic skepticism; 10.3. What's feared; 11. Modern liberal practice; 11.1. Practice's view of law; 11.2. Two views of disorder; 11.3. Implications of disorder; 12. Legality recapitulated.

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Book SynopsisJurisprudence has up until recently largely neglected international law as a subject of philosophizing. The Nature of International Law tries to offset against this deficiency by providing a comprehensive explanatory account of international law. It does so within an analytical tradition, albeit within the one which departs from the nowadays dominant method of the metaphysically-driven conceptual analysis. Instead, it adopts the prototype theory of concepts, which is directed towards determining typical features constitutive of the nature of international law. The book''s central finding is that those features are: normativity, institutionalization, coercive guaranteeing, and justice-aptness. Since typical features are context sensitive, their specificities at the international level are further elucidated. The book, finally, challenges the often raised claim that fragmentation is international law''s unique feature by demonstrating that international institutional actors, particularly adjudicative ones, largely perceive themselves as officials of a unified legal order.Trade Review'Legal philosophers have too often ignored international law as irrelevant, or because it is an embarrassment to their theories. In his innovate new book, The Nature of International Law, Miodrag Jovanović properly brings international law back to the center of jurisprudential inquiry. As important, Jovanović offers an important challenge to, and alternative to, conceptual analysis, in his prototype theory.' Brian H. Bix, Frederick W. Thomas Professor of Law and Philosophy, University of MinnesotaTable of ContentsAcknowledgments; Introduction; Part I. International Law as a Subject Matter of Legal Philosophy – A Brief Historical Overview: 1. Early theorizing about law beyond the state – Ancient Greece and Rome; 2. Natural law theory and the birth of international legal scholarship – Grotius, Pufendorf and Hobbes; 3. The German public law turn; 4. Classical analytical jurisprudence: the rise of skepticism towards international law; 5. Twentieth century legal positivism on international law; 6. Revived jurisprudential interest in international law; Part II. In Search of the Nature of (International) Law – Methodological Postulates: 7. Grasping 'analytical' in the analytical approach; 8. Challenges to the conceptual analysis; 9. Beyond the conceptual analysis? The prototype theory of concepts and the nature of law; Part III. Typical Features of (International) Law: 10. The central case of law (as a genre); 11. Typical features of (international) law – preliminary finding; Part IV. International Law as a Normative Order: 12. Epistemological perspective – how are we to ascertain a norm; 13. Epistemological perspective at the international level – on formal sources of international law; 14. Perspective of practical rationality – how norms provide reasons for action; 15. Perspective of practical rationality at the international level; Part V. International Law as an Institutionalized and (Coercively) Guaranteed Order: 16. Institutionalization of the international order; 17. Institutions of international law; 18. (Coercive) guarantees in international law; Part VI. Justice-Aptness of International Law: 19. Allocative conflicts and international law-making; 20. Rectificatory justice and international law-application; Part VII. Fragmentation – A Special Feature of International Law?: 21. Hart's lens of 'systematicity'; 22. The ILC's lens of 'fragmentation'; 23. The 'as if' lens of international law's unity; In lieu of a conclusion – a note on (un)certainty.

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Book SynopsisThe focus of this monograph lies in the construction of a theory of legal obligation, understanding it as a discrete notion with its own defining traits. In this work, Bertea specifically addresses the question: how should legal obligation be distinctively conceptualized? The conceptualization of legal obligation he defends in this work gradually emerges from a critical assessment of the theories of legal obligation that have been most influential in the contemporary legal-theoretical debate. Building on such critical analysis, Bertea''s study purports to offer a novel and unconventional conceptualization of legal obligation, which is characterized as a law-engendered intersubjective reason for carrying out certain courses of conduct.Table of ContentsIntroduction; 1. The concept of obligation; 2. Contemporary approaches to legal obligations: a preliminary map; 3. The social-practice account; 4. The interpretivist account; 5. The conventionalist reason account; 6. The exclusionary reason account; 7. A revisionary Kantian conception; 8. Further dimensions of the revisionary Kantian conception; 9. The robust reason account; 10. The method of presuppositional interpretation; Conclusion.

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Book SynopsisExplores the effects in theory and in practice of recent foreign inspired legal reforms in East Asia and Oceania. It provides a unique overview of the variety of methodologies that are conducive to a successful legal transplant.Trade Review'The range and depth of the analysis make the book a must-read for comparative law scholars and students all over the world.' Patrícia Jerónimo, I-CONnect Blog (http://www.iconnectblog.com/)Table of ContentsIntroduction Vito Breda; 1. The legal transplants debate: getting beyond the impasse? Andrew Harding; 2. Transplant shock: the hazards of introducing statutes of general application Jennifer Corrin; 3. Bentham's theory of legal transplants and his influence in Japan Michihiro Kaino; 4. On the Hardingian renovation of legal transplants Benjamen Gussen; 5. The incomplete legal transplant – good faith and the common law Anthony Gray; 6. How long is too long to determine the success of a legal transplant? International doctrines and contract law in Oceania Jessica Viven-Wilksch; 7. Proportionality in Australian public law Hoong Phun Lee and Colin Campbell; 8. Legal transfer and 'hybrid' international commercial dispute resolution procedures: lessons from the Singapore International Commercial Court Drossos Stamboulakis; 9. The Independent Lawyers' Association of Myanmar as a legal transplant: local challenges to the idea of an Independent National Bar Association Jonathan Liljeblad; 10. Shark sanctuaries as vehicles for transplanting conservation tools in disparate legal jurisdictions Erika Techera; 11. Global norms; Local resistance: addressing impunity in Japan and beyond Sophia O'Brien; 12. Legal transplants, temporary migration projects and special rights Tiziana Torresi; 13. Conclusion Vito Breda.

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Book SynopsisIn 1956, ICJ judge Philip Jessup highlighted the gaps between private and public international law and the need to adapt the law to border-crossing problems. Today, sixty years later, we still ask what role transnational law can play in a deeply divided, post-colonial world, where multinationals hold more power and more assets than many nation states. In searching for suitable answers to pressing legal problems such as climate change law, security, poverty and inequality, questions of representation, enforcement, accountability and legitimacy become newly entangled. As public and private, domestic and international actors compete for regulatory authority, spaces for political legitimacy have become fragmented and the state''s exclusivist claim to be law''s harbinger and place of origin under attack. Against this background, transnational law emerges as a conceptual framework and method laboratory for a critical reflection on the forms, fora and processes of law making and law contestation today.Trade Review'This volume brings together leading international scholars - from various mainstream as well as critical and interdisciplinary perspectives - to explore the historical and contemporary normative frameworks, public and private actors, and contested power relations in the ever-expanding field of transnational law. Drawing upon the ground-breaking contributions of Philip Jessup in the wake of WWII, the volume points to the innovations of current scholarship that analyze transborder legal processes as collective and discursive practice. Since many aspects of transnational law are largely unregulated by state governments, the volume rightly asks to what degree does transnational law contribute to today's crises of democratic governance? Given what is at stake, the volume is essential reading for scholars and practitioners grappling with the increasing complexities of transnational legal formations in the twenty-first century.' Eve Darian-Smith, University of California, Irvine'From Jessup's first insights on transnational law, itself situated somewhere between the public and private international legal varieties, emerges the riddle of the 'in-between': inter-legalities, inter-normativities, inter-textualities. Further questions arise: How do we understand law beyond the state, across geographical and disciplinary boundaries, if not as a motley assemblage of claims to legitimacy, soft and hard, crossing and muddling familiar boundaries, aspiring to both global and subnational validity? What exactly is being globalized as law today? What epistemologies are available in order to capture its transformations? This stimulating collection of very diverse 'multi-dimensional' viewpoints from around the world - by pragmatists, pluralists, feminists, post-colonialists, comparatists, historians … - engages a wide selection of topics, including data flows, arbitration, sports law, environmental regulation, dispute resolution, family, and others - through an equally ample range of conceptual and, indeed, emotional registers - comity, cooperation but also the drama, the unseen, the darker legacy … - to enrich our legal imaginaries.' Horatia Muir Watt, Ecole de droit, Sciences-po, Paris'Jessup magisterially named a phenomenon that promises to saturate the world – the magnetic pull of law towards arrays of problems whose solution extends beyond the state. The seemingly endless proliferation of actual and aspirant legal orders in the transnational demands precisely the relentlessly creative, critical and constructive reflections in this timely volume. It is all here – transnational law as texts and institutions, form and function, drama and symbol, emotion and reason, fact and value, as it confronts food security, global sustainability, terrorism, sport and the family, and much else. No mere jurists' playground, this book presses legal scholars into lively conversation with social scientists who also grapple with law's insatiable reach to problem-solving worldwide. Many Lives is a singular achievement and worthy of searching reflection by scholars and transnational lawmakers alike.' Terence C. Halliday, American Bar Foundation'Transnational Law is more than and different from Public International Law. This idea encompasses a whole world of facts, of instruments and of thoughts. Over the past sixty years, Transnational Law has ventured far beyond the circles of international lawyers as it continues to resonate with efforts in political science, theory and philosophy to conceptualize political order and democratic legitimacy across the nation-state's boundaries. The gift of writings presented here to Jessup and to the legal community at the 60th anniversary of the first publication of 'Transnational Law' sketches and revisits this history and idea in a truly congenial way – dense, thoughtful, and inspiring.' Stefan Grundmann, European University Institute, Florence and Humboldt-Universität zu BerlinTable of ContentsIntroduction: transnational law, with and beyond Jessup Peer Zumbansen; Part I. Transnational Law: The Public and the Private: 1. Jessup at the United Nations: international legacy, transnational possibilities Stephen Minas; 2. The concept of a global legal system Christopher A. Whytock; 3. How comity makes transnationalism work Thomas Schultz and Niccolò Ridi; Part II. Transnational Law as Regulatory Governance: 4. Aiding and abetting in theorising the increasing softification of the international normative order – a darker legacy of Jessup's transnational law? Karsten Nowrot; 5. From international law to transnational law, from transnational law to transnational legal orders Gregory Shaffer and Carlos Coye; 6. Transnational law in the Pacific Century: mapping pesticide regulation in China Francis Snyder, Zhouke Hu and Lili Ni; 7. Transnational law in context: the relevance of Jessup's analysis for the study of 'international' arbitration Florian Grisel; 8. Transnational Law and Adjudication – Domestic, International and Foreign Intersections Bryan Horrigan; 9. Transnational Law and Global Dispute Resolution Shahla Ali; 10. Conflicts of law and the challenge of transnational data flows Paul Schiff Berman; 11. What lex sportiva tells you about transnational law Antoine Duval; 12. Family law: a blindspot Ivana Isailovic; Part III. Transnational Law: The Field's Normative Stakes: 13. Locating private transnational authority in the global political economy A. Claire Cutler; 14. Transnational law as drama Jothie Rajah; 15. Transnational law as unseen law Natasha Affolder; 16. The Cri De Jessup sixty years later: transnational law's intangible objects and abstracted frameworks Larry Catá Backer; 17. The private life of transnational law: reading Jessup from the postcolony Prabhakar Singh; 18. After the backlash: a new pride for transnational law? Ralf Michaels; Part IV. Conclusion: Epilogue – difficulties for every solution: defining transnational law at the edge of transdisciplinarity Vik Kanwar.

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Book SynopsisWe are at a time when international law and the law of war are particularly important. Ever since the first nuclear bomb was tested and then used, humanity has lived with the threat of total annihilation. This book discusses the effects of nuclear war and shows a way to eliminate the risks.Table of ContentsPart I. International Law and World Order: 1. The Shimoda case: a legal appraisal of the atomic attacks upon Hiroshima and Nagasaki; 2. Nuclear policy and world order: why denuclearization; 3. Toward a legal regime for nuclear weapons; 4. Nuclear weapons, international law and the world court: a historic encounter; 5. The nuclear weapons advisory opinion and the new jurisprudence of global civil society; 6. Inhibiting reliance on biological weaponry: the role and relevance of international law; Part II. Impacts of Democracy, Neutrality and National Interest: 7. Nuclear weapons and the end of democracy; 8. Nuclear weapons and the renewal of democracy; 9. Neutrality, international law and the nuclear arms race; 10. Nuclearism and national interest – the situation of a non-nuclear ally; 11. A radical world order challenge: addressing global climate change and the threat of nuclear weapons; Part III. Nuclear Policy Initiatives: 12. Arms control, foreign policy, and global reform; 13. The illegitimacy of the non-proliferation regime; 14. No first use of nuclear weapons: pros and cons; 15. Environmental warfare and ecocide facts, appraisal, and proposals; Part IV. Remembering the Past, Encountering the Future: 16. The paucity of the millennial moment: the case of nuclearism; 17. The nuclear challenge after seventy years; 18. The spirit of Thoreau in the age of Trident.

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Book SynopsisKant''s Critique of Pure Reason, his main work of theoretical philosophy, frequently uses metaphors from law. In this first book-length study in English of Kant''s legal metaphors and their role in the first Critique, Sofie Møller shows that they are central to Kant''s account of reason. Through an analysis of the legal metaphors in their entirety, she demonstrates that Kant conceives of reason as having a structure mirroring that of a legal system in a natural right framework. Her study shows that Kant''s aim is to make cognisers become similar to authorized judges within such a system, by proving the legitimacy of the laws and the conditions under which valid judgments can be pronounced. These elements consolidate her conclusion that reason''s systematicity is legal systematicity.Trade Review'The simplest objection to Kant's Critical project – the claim that reason cannot critique itself – is one that Kant himself not only anticipated but largely answered. Moller shows how Kant's extensive legal metaphors throughout the Critique of Pure Reason form a coherent whole intended to explain the basis of reason's self-critique. She provides the best explanation yet of how Kant defended his critical project, one that also reveals Kant's deep understanding of natural law theory.' Frederick Rauscher, Michigan State University'… offers the reader a detailed and historically rich account of the legal terminology that Kant adopts or references. Møller's book is a wonderful antidote to the sense one sometimes has, even when one reads Kant in the original, that one is still reading a slightly different and distant language.' Kantian Review'Møller's book delivers on many of its central claims and should have considerable influence on those interested in Kant's legal metaphors.' Jessica Tizzard, Journal of the History of PhilosophyTable of ContentsIntroduction; I.1 The cognitive function of metaphors; I.2 Methodological considerations; I.3 The primacy of practical reason and epistemic normativity; I.4 Outline of the book; 1. The critique as the establishment of reason's lawful condition; 1.1 The critique as a review of laws; 1.2 The natural right tradition and the Naturrecht Feyerabend; 1.3 The critique as a lawful solution to conflicts; 1.4 Establishing a rightful condition; 2. The normativity of law; 2.1 Natural right and positive law; 2.2 Laws of nature in the natural sciences; 2.3 A priori laws as objectively valid rules; 2.4 Laws and principles; 2.5 The understanding as prescribing laws to nature; 3. The transcendental deduction and the tradition of legal deductions; 3.1 Quid juris and the transcendental deduction; 3.2 The analogy between concepts and property; 3.3 The transcendental deduction as a legal deduction tracing an origin; 3.4 The tradition of legal deductions; 4. The question of fact and the question of law in judicial imputation and in the transcendental deduction; 4.1 Quid facti and the tracing of an origin; 4.2 Quid facti and the metaphysical deduction; 4.3 The question of fact and the question of law in judicial imputation; 4.4 The transcendental deduction as judicial imputation; 5. The tribunal of reason; 5.1 The critique as tribunal; 5.2 The Antinomies as a legal trial; 5.3 Empirical experience as testimony; 5.4 The reader as judge of the critique; 5.5 The outcome of the critique as verdict; 6. Moral conscience as the practical inner tribunal; 6.1 Conscience as an inner tribunal; 6.2 Self-deception in moral conscience; 6.3 The problem of an erring conscience; 6.4 Parallels between moral conscience and the critique of pure reason; 7. Distinguishing between rightful claims and groundless pretensions; 7.1 Historical background on judicial authority; 7.2 Kant on judicial authority; 7.3 The judicial office in the legal metaphors; 7.4 Authority and validity of judgments and inferences; 8. Epistemic authority as both individual and collectively shared; 8.1 Decrees as the opposite of verdicts; 8.2 Cognitive attitudes; 8.3 Epistemic authority and the thinking self; 8.4 Political aspects of the critique of pure reason; 8.5 The community of cognisers; 9. Systematicity and philosophy as the legislation of reason; 9.1 Other images of systematicity: the organism and the building; 9.2 The legal metaphors as illustrations of systematicity; 9.3 Philosophy as the legislation of human reason; 9.4 Systematicity in the Appendix to the Transcendental Dialectic; 9.5 The critique as the science of the laws of pure reason; Conclusion.

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Book SynopsisThis collection of scholarly essays demonstrate the different facets of judicial review based on the vast area of comparative constitutional law. It honours the body of work of Upendra Baxi, legal scholar and author, whose contributions have shaped our understanding of legal jurisprudence and expanded the scope of social transformation in India.Table of ContentsForeword Justice A. K. Sikri; Editors' note Salman Khurshid, Sidharth Luthra, Lokendra Malik and Shruti Bedi; Introduction M. P. Singh; 1. The inadequacy of judicial enforcement of constitutional rights provisions to rectify economic inequality, and the inevitability of the attempt Mark Tushnet; 2. The interplay of law and politics in India James Manor; 3. Beating the backlog: reforms in administration of justice in India Abhishek Singhvi; 4. Judicial review: perspectives and reflections for the twenty-first century John Mceldowney; 5. When 'creeping jurisdiction' goes awry: the social action litigation to ban surrogacy Sital Kalantry; 6. Judicial review and the democratic judge Joel I. Colón-Ríos; 7. Judicial review: a tool to shape constitutional jurisprudence Balram K. Gupta; 8. The Baxian bioscope on Indian judicial process Amita Dhanda; 9. Judicial activism, courts, and constitutional revolutions: the Israeli case Yaniv Roznai and Gary J. Jacobsohn; 10. Democracy, constitution, and judicial review: a critique Vijender Kumar and V. P. Tiwari; 11. A minor jurisprudence of pathos: Upendra Baxi as teacher and writer Oishik Sircar; 12. The need for reinventing the Supreme Court as a constitutional court Sidharth Luthra and Nivedita Mukhija; 13. Appointment of 'distinguished jurists' as judges in the Supreme Court of India: a critical analysis Lokendra Malik; 14. Judicial dissent and judicial review: a functional analysis Yogesh Pratap Singh; 15. The power of judicial review: judicial chutzpah or judicial desideratum Shruti Bedi; 16. Judicial review of legislations by tribunals in India: law, problems, and perspectives P. Puneeth; 17. Criminalization of membership of terrorist organizations in India and the United States of America: human rights concerns Anurag Deep; 18. Article 142 of the Indian Constitution: on the thin line between judicial activism and restraint R. Hari Krishnan and Anurag Bhaskar; 19. Sketching the limits of Article 142 of the Constitution of India: a constitutional necessity Shailendra Kumar; 20. Constitutional morality and judges of the Supreme Court Salman Khurshid; About the contributors; Index.

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