What is the core of legal scholarship? How can we understand its relation to other disciplines, such as moral and political philosophy, sociology, and economics? I explore these questions by analysing the impact of the dual nature thesis. Criticising established theories of legal scholarship, I defend the ideal of an integrative jurisprudence. Integrative jurisprudence combines the two dimensions of law by employing analytical, empirical, and normative methods. I then discuss three objections and address the problem of (...) how to bridge is and ought. In the course of my analysis of three different bridge theories, I ultimately further develop the dual nature thesis into a triadic nature thesis. (shrink)

Celebrating the remarkable career of jurist Harold J. Berman, the essays in this volume demonstrate that Berman's contributions to Russian studies, international trade law, legal history, philosophy of law, and law and religion have firmly established him as part of the tradition of our greatest American jurists.

This new book takes an innovative and novel approach to the study of jurisprudence. Drawing together a range of specialists, making original contributions, it provides a summary, analysis, and critique of basic themes in, and major contributions to, the study of jurisprudence. The book explores issues and ideas in jurisprudence in a way that integrates them with legal study more broadly, avoiding the tendency in recent years for the subject to become overly inward-looking, specialist and technical, leaving (...) students and the subject adrift. It picks up mid-range concepts such as rights, sovereignty, and adjudication and charts their interrelation and uses in law and legal theory. The approach taken to the subject is an interdisciplinary one, and involves making linkages with contemporary issues in political and social theory, such as the changing role of the state, forms of dispute resolution and the courts. It also addresses topics not normally covered, or covered only indirectly in other jurisprudence textbooks, such as globalisation and legal culture. Its coverage is therefore broad and links legal, political, philosophical, and social analysis. (shrink)

This edited collection includes contributions from expert philosophers of law and considers the work of one of the most important legal philosophers of our time, Professor Gerald J Postema. The chapters dig deep into important camps of Postema's rich theoretical project including: - the value of the rule of law; - the ideal of integrity in adjudication; - his works on analogical reasoning; - the methodology of jurisprudence; - dialogues with Ronald Dworkin, Joseph Raz, Frederick Schauer and HLA Hart. (...) It includes an original article by Professor Postema, in which he develops his conception of the rule of law and replies to some objections to previous works, and an interview in which he provides a fascinating and unique insight into his philosophy of law. (shrink)

“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. A virtue–centred (...) account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR]. (shrink)

A theoretical and sociological exploration of the relationship between law and society, this book constructs an approach to law that integrates legal theory with sociological approaches to law. Law is generally understood to be a mirror of society--a reflection of its customs and morals--that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society, engaging in a theoretical and empirical critique of this (...) common understanding. (shrink)

Once I’ve heard a joke about legal academia, and given that this was a very good joke, it was also very close to reality. This is how it went: ‘well, if you want to be successful in the Anglo-Ameri...

Applied naturalism -- Natural rights -- Applied positivism -- A concept of interpretive methodology -- Application of principles of public policy -- Interpretative sources of law -- The formulation of legal principles -- The formulation and application of principles of interpretative construction -- The formulation and application of principles of constructive interpretation -- Application of appropriate equitable principles -- The formulation and application of determinant legal tests and criteria by the courts -- The practical adoption of the jurisprudential process of (...) conceptualisation -- Legal factors and formulae determining correct motion procedures -- The usefulness of templates and principles in maintaining integrity of law in legal practice. (shrink)

In his “Integrity: Justice in Work Clothes,” Postema assumes the task of showing that integrity is a genuine moral value of political communities, distinct from other values such as justice and fairness. Postema’s conception of integrity borrows much from Dworkin’s, but also differs from it in an important respect. As anyone familiar with Dworkin’s theory would expect, Postema’s idea of integrity is a kind of fidelity in laws (“practical directives”) and policies to principles arising from what Dworkin famously called “past (...) political decisions of the community.” It is fidelity to a conception of justice that fits and unifies these past decisions (and present ones), a conception the community can be viewed as forming. Postema’s innovation is to see integrity as “complex,” incorporating both “respect” for the past and also “regret.” Because of regret, any set of principles fitting the past will have some compromised coherence – indeed, some incoherence. Regret is consistent with preserving some currency for a morally incorrect decision, but limiting its force. The ultimate justification for viewing integrity as a virtue of law, Postema argues, is that it serves justice and fidelity, which he conceives of as other, more fundamental, values – provided, that is, that the principles express a “morally meaningful” conception of justice. Integrity thus understood allegedly binds officials to precedents in common law legal systems. So if Postema can succeed in his argument that integrity is a genuine moral value, he will have provided a moral justification for following precedent, even when the precedent is mistaken. Moreover, it will be a new kind of justification, an “internal justification” – one that provides a good reason for what Postema assumes is the rule of a precedent case. Success in his argument would be an important contribution to legal theory above and beyond the justification of precedent. Success would show that an interpretive conception of the nature of law also provides moral legitimacy to the resulting laws so conceived. Along with a stout defense of an interpretive theory of law – in particular, an integrity theory of law -- which Postema does not attempt, success would be the key to defending the widespread intuition that legal claims are not just formally normative, or normative in some special legal sense, but robustly – and so, morally – normative. Reasons for complying with law, properly understood, and for applying and enforcing it would be shown to transcend the realm of the merely prudential and the contingent. The conclusion of deep engagement with the details of Postema’s rich and intricate argument, unfortunately, reveals that it fails in its objective. Postema does not succeed in establishing that integrity is a distinct moral value of political communities. Moreover, the setting in which it is plausible that past principles morally justify following precedent is so special and (to some extent) ideal that Postema cannot be credited with offering a new justification for following precedent in actual common law systems, in the real world of the common law. (shrink)

The Terri Schiavo case, the latest high-profile “right-to-die” case in the United States, whose denouement saturated the US mediasphere at the end of March 2005, is a particularly complex problem in the Deleuzean sense. Its solution, which took more than 15 years, actualized lines from legal, medical, biological, political … multiplicities. The ellipses indicate the impossibility of completely delimiting the forces at work in any case (the virtual as endless differentiation) just as it indicates the necessity of cutting through them (...) in making any one solution work (actualization as differenciation). Thus that actualization, a creative resolution of the problem, brought some aspects of the virtual into distinctness, while others faded into momentary obscurity.1 The elements functioning most intensely in the Schiavo case cut across the fields of right, medical discipline and biopower, hence at the intersection of sexuality and racism, as Foucault explains.2 The turn to a liberal notion of the right to privacy as the right to die is never simple, for we remain trapped at the intersection of discipline and biopower if we ground that right in sovereign rights of personal autonomy and bodily integrity. The challenge to a Deleuzean jurisprudence is to creatively transform that right to show its basis in de-personalization. In other words, only in an extraordinary, ethical, situation, living along the fault line.. (shrink)

Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as (...) theorists talking past one another. (shrink)

Ulrich Beck, Jean-Marc Ferry et Jürgen Habermas voient dans l’Union européenne la réalisation d’une démocratie postnationale, capable de se hisser au niveau des enjeux actuels. Les signes de cette réalisation ne se font toutefois pas jour dans des valeurs abstraites, mais dans l’expérience de l’européanisation, lors des commerces transfrontaliers. Après avoir présenté ce paradoxe dans les textes, nous suggérons que l’accent mis sur les expériences ordinaires tient à la place occupée par le droit dans la construction européenne. Le contrôle des (...) libertés de circulation par la Cour de justice de l’Union européenne, caractéristique du marché intérieur, est à l’origine d’une intégration plus large, qui a étendu les droits des opérateurs économiques et forgé le statut de citoyen européen. La jurisprudence de la CJUE a en effet permis d’élargir la portée des droits transnationaux, dans la continuité du droit cosmopolitique kantien, sans dissoudre les États membres dans une association supranationale. Une affiliation postnationale, alternative au modèle de la souveraineté étatique classique, semble ainsi se concrétiser dans l’Union européenne. Cependant, nous suggérons que le crédit accordé à la construction, par la jurisprudence de la CJUE, de la citoyenneté postnationale, risque d’occulter les effets problématiques d’une intégration judiciaire vouée à être essentiellement négative. (shrink)

Exploring Law's Empire is a collection of essays by leading legal theorists and philosophers who have been invited to develop, defend, or critique Ronald Dworkin's controversial and exciting jurisprudence. The volume explores Dworkin's critique of legal positivism, his theory of law as integrity, and his writings on constitutional jurisprudence. Each essay is a cutting-edge contribution to its field of inquiry, the highlights of which include an introduction by Justice Stephen Breyer of the United States Supreme Court, and a (...) concluding essay by Dworkin himself. This final chapter responds to the preceding essays and lays out Dworkin's own vision for the future of jurisprdence over the coming years. (shrink)

This new edition of Charles Fried's 'Medical Experimentation' includes a general introduction by Franklin Miller and the late Alan Wertheimer, a reprint of the 1974 text, an in-depth analysis by Harvard Law School scholars I. Glenn Cohen and D. James Greiner, and a new essay by Fried reflecting on the original text and how it applies to the contemporary landscape of medicine and medical experimentation.

Professional roles are often thought to bring role-specific permissions and obligation, which may allow or require role-occupants to do things they would not be permitted or required to do outside their roles, and which as individuals they would rather not do. This feature of professional roles appears to bring them into conflict both with 'ordinary' or non-role morality, and with personal integrity which is often thought to demand some form of personal endorsement of one's conduct. How are we to reconcile (...) the demands of roles with ordinary morality and with personal integrity? This collection draws together a set of papers which explore these questions as they bear upon a number of different professional roles, including those of the lawyer, the judge and the politician, and from a variety of perspectives, including contemporary analytic moral theory, jurisprudence, psychoanalytic theory, virtue ethics, and contextualism, and, more broadly, from philosophy and legal academia and practice. (shrink)

Defends my proposed account of lying (framed in terms of new classical natural law theory) against Chris Tollefsen's objections, centering on the objection that, whatever else it involves, lying necessarily involves an attack on the basic good of self-integration.

This article asks whether a “law-as-integrity” approach to human rights adjudication provides a theoretical framework within which to make sense of authoritative regional interpretations of basic human rights for the global community. To focus analysis, I consider U.S. court interpretations of international human rights as an interpretive context. I argue that, with appropriate modification so as to include the world community as a “community of principle” for purposes of human rights adjudication, the law-as-integrity perspective permits disputes surrounding the legality of (...) human rights to revolve around competing interpretive claims backed up by justifying legal theories, rather than as ideological battles external to a juridical philosophy of rights. (shrink)

It is well known that the dominant paradigm underlying the free movement jurisprudence of the Court of Justice has progressively shifted from the ‘market citizen’ to the EU citizen: in order to invoke free movement and equal treatment rights an economic nexus is no longer needed, allowing, for example, students to claim equal treatment with host Member State nationals as regards access to education and the receipt of study grants. Normatively, however, this raises important questions. The classic logic whereby (...) these free movement and equal treatment rights were provided to Member State nationals as a quid pro quo for their contribution to and participation in a project of European integration—the establishment of the common market—is undermined. A new ‘aim’ or ‘rationale’ is thus needed, capable of explaining and informing the citizenship jurisprudence of the Court. The purpose of this article is to construct a conceptual framework for the Court’s EU citizenship jurisprudence by relying on a cosmopolitan vision of citizenship as set out by Immanuel Kant in his seminal work Zum ewigen Frieden. It is submitted in this article that Kant’s cosmopolitan right of hospitality, meant to guarantee interaction between the peoples of the world with a view to developing a shared universal conscience characterised by a desire for peace and prosperity, in essence informs the EU citizenship jurisprudence of the Court. (shrink)

This paper unravels the diverse strands in the manifestations of the Prevention of Terrorism Act (POTA, 2002), focusing not only on law’s words, i.e. the rules, principles and procedures, and its interpretations in judgments, but also on its effects. Adopting the violence of jurisprudence approach, it eschews the dichotomy between law and violence, examining the ‘effects of legal force’, in particular, the ways in which law becomes an integral part of the organization of state violence. Through an examination of (...) the unfolding of POTA and laws dealing with ‘organized crime’ and ‘unlawful activities’ (Unlawful Activities Prevention Act, 1967, 2005), the trajectory of specific cases and judgments by Trial Courts, the High Courts and the Supreme Court, this paper shows how through an interlocking of the ordinary and extraordinary, anti-terror laws erode both the procedural and substantive aspects of the rule of law, become the terrain where permutations in alliance politics and configuration of power are played out, and assume an antagonistic notion of politics which seeks resolution through the elimination and externalization of difference. Extraordinary laws, it argues, are manifestations of a politics of negation. Processes that prolong the lives of such laws, and procedural interlocking and intermeshing that seek to give them permanence, are symptomatic of a deepening of the politics of negation. (shrink)

Good,No Highlights,No Markup,all pages are intact, Slight Shelfwear,may have the corners slightly dented, may have slight color changes/slightly damaged spine.

Sufferers of body integrity identity disorder (BIID) experience a severe, non-delusional mismatch between their physical body and their internalised bodily image. For some, healthy limb amputation is the only alleviation for their significant suffering. Those who achieved an amputation, either self-inflicted or via surgery, often describe the procedure as resulting in relief. However, in England, surgeons who provide ‘elective amputations’ could face prosecution for causing grievous bodily harm (GBH) under section 18 of the Offences Against the Persons Act 1861. Whether (...) such a therapeutic intervention should be classified as GBH depends on the presence of harm, as, without harm, it is hard to argue that GBH has occurred. However, there is no agreed-upon definition of what constitutes harm. Such a definitional absence then begs the question, what is harm? It is this question which this article addresses, using the provision of healthy limb amputation in cases of BIID as an example. Drawing on metaphysics, this article will seek to clarify three separate contemporary models of harm: the counter-temporal, the counterfactual, and the non-comparative. Each model will be applied to the scenario of a surgeon carrying out a BIID-induced, therapeutic, healthy limb amputation, and in each, how harm may, or may not, be understood to have been caused will be explored. It concludes that an unexamined conception of harm is ill-equipped for employment in suspected cases of GBH when it is unclear whether harm has been caused and that a better-informed understanding of harm is required in cases where there is potential disagreement, be that in instances of BIID or a myriad of other borderline scenarios. (shrink)

This paper presents a dilemma for Matthew Kramer’s view, as defended in his _Liberalism with Excellence_. A central aim of that book is to critique existing liberal perfectionist theories, which he labels “edificatory,” and to defend a different such theory, which he calls “aspirational.” Edificatory perfectionism holds that governments ought to promote citizens’ well-being directly by inducing them to live lives that are more wholesome, cultivated, or autonomous. Aspirational perfectionism, meanwhile, holds that governments ought to promote the conditions under which (...) every citizen can be warranted in harboring a strong sense of self-respect, by promoting the occurrence of outstanding achievements within society. We first argue that Kramer’s two central arguments against edificatory perfectionism, which appeal to the value of freedom and to moral integrity, fail to establish the impermissibility of edificatory policies. His critique could be salvaged by holding that the ambit of legitimate government activity is limited to the provision and distribution of primary goods. However, we argue, second, that Kramer’s own aspirational perfectionism also runs afoul of this restriction, because his conception of warranted self-respect is not a primary good. Kramer is thus faced with a choice between upholding his objections to edificatory perfectionism and maintaining the coherence of his aspirational perfectionism. -/- . (shrink)

This article analyzes the question of how the size of bribes should impact criminal sanctions. In contrast to the commonly held view that punishment should increase with the size of the bribe, we argue to the contrary: that the punishment of the bribee should decrease with the size of the bribe. Our conclusion is based both on a philosophical argument and an economic argument. We argue that all else being equal, as an agent’s reservation price for selling public interests decreases, (...) the culpability of the agent willing to receive a bribe increases. In addition, from an economic perspective, the expected social harm of an official acting with a low reservation price for bribes is much greater than one acting with a high reservation price: both the susceptibility of being bribed as well as the potential for social harm is much greater when the reservation price is low. (shrink)

No profession has undergone as much scrutiny in the past several decades as that of medicine. Indeed, one might well argue that no profession has ever undergone so much change in so short a time. An essential part of this change has been the growing insistence that competent, adult patients have the right to decide about the course of their own medical treatment. However, the familiar and widely accepted principle of patient self-determination entails a corollary that has received little attention (...) in the growing literature on the ethics of physician-patient relations: if patients are to direct the course of their own medical treatment, then physicians are at least sometimes to be guided in their actions on behalf of patients by values that are not, and may even be incompatible with, their own values. Unless it is supposed that it would be best if physicians were simply to accommodate any and all patient requests, a possibility I consider and reject in this paper, there are bound to be numerous instances of legitimate moral conflict between the preferences of physicians and patients. In this paper, I examine the implications of this sort of moral conflict from the standpoint of the integrity of the physician. -/- Critical to a proper appreciation of the significance of this conflict is a distinction that the literature on biomedical ethics has largely failed to draw: that between medical paternalism and physician integrity. (shrink)

What are the ethics of child genital cutting? In a recent issue of the journal, Duivenbode and Padela (2019) called for a renewed discussion of this question. Noting that modern health care systems...

This volume presents a Type Theory of Law (TTL), claiming that this is a unique theory of law that stems from the philosophical understanding of Jung's psychological types applied to the phenomenon of law. Furthermore, the TTL claims to be a universal, general and descriptive account of law. To prove that, the book first presents the fundamentals of Jungian psychological types, as they had been invented by Jung and consequently developed further by his followers. The next part of the book (...) describes how the typological structure of an individual determines their understanding of law. It then addresses the way in which inclusive legal theory can be understood based on this typology. Finally, the book describes the TTL in general and descriptive terms and puts it into context. All in all, the book shows how the integral or inclusive approach to understanding the nature of law is not only in tune with our time, but also relevant for presenting a more persuasive picture of law than the older exclusivist or dualist approaches of strict natural law and rigid legal positivism did. (shrink)

Muhammad Arsyad Al-Banjari who lived from 1710 to 1812 in Borneo, Indonesia, applied a model of integrating uses of the Banjarese tradition into Islamic Jurisprudence based on a dialectical constitution of qiyās, the legal argumentation theory for parallel reasoning and analogy, he learned from the Shāfi‘ī-school of jurisprudence (uṣūl al-fiqh). Our paper focuses in the model of integration proposed and practiced by Al-Banjari, a rational debate grounded on a dynamic view on legal systems. We will illustrate the method (...) with the help of two different kinds of qiyās deployed by Al-Banjari in order to argue for the rejection of some traditional Banjarese offering-rituals for avoiding disease or calamities (manyanggar and mambuang pasilih), and for the acceptance of the use of consuming the traditional drink called lahang made of the juice of sugar-palm. As our dialogical reconstruction shows, the development of the debates, particularly the first one, is quite sophisticated, with a Banjarese opponent that does not surrender easily to the rejection of his use of those rituals. (shrink)

关于什么是法学,什么(应该)是法,法如何适用这三个问题的讨论,构成了本书的主体部分.如果说法学就是对一定时空下需要解决的实践问题做出的回应,并且反映了那个时空下的历史条件和社会思潮的话,那么,本书就是 尝试在关照历史,哲学,实践等多维视角的基础之上,对法学问题给出有根据和理由的整合性答案.

The famous Montesquieu’s catachresis wherein judges should be no more than the “mouth that pronounces the words of the law” is actually facing a crisis. I. e. Law has lost its unifying principle, its centre wherein its practices could search for foundation and legitimacy. Therefore, as a decentered reality, I believe Law should get a poststructuralist approach, appropriate for a decentered structure. That is why the aim of my research is to link Law to the poststructuralist theoretical reference of the (...) theory of discourse, as developed in the works of Ernesto Laclau and Chantal Mouffe. Anyway, as Laclau and Mouffe’s theoretical works are concentrated on the ontological level, I need to link their ontological reflections and Law manifestations on ontic level, the level of judicial practices. For that, I will use the support of the jurisprudence of Ronald Dworkin. However, as dworkinian theory is situated in a very different philosophical background, when compared to Laclau and Mouffe’s theory of discourse, it will be necessary to rearrange some features of his jurisprudence to make it fits on a different comprehension of Law and its integrity. Especially considering integrity as hegemonic integrity, understanding the principles of justice as promises of justice and substituting judge Hercules for a new mythological character that, instead of searching one right answer in a seamless web, is herself who seams that web: Judge Penelope. (shrink)

New institutions of indigenous governance will be the product of negotiations, negotiations that will take place against a background of colonial structures and relationships. Having examined the challenges of structuring a negotiation process that takes due account of pre-existing cultural and power differences between the parties, the author analyzes the significance of their choice of negotiation strategy on the negotiation process and outcome. In particular, this paper reflects on the promise and limitations of the parties’ adopting interest-based, or “integrative”, (...) negotiation strategies and the potential for fruitful entanglements between those strategies and indigenous diplomatic traditions. (shrink)

This paper argues that we can better understand Ronald Dworkin's thesis that both individuals and governments must strive to act in accordance with principles that comprise a coherent moral conception, or with what he calls 'integrity', as an instance of Immanuel Kant's fundamental ethical injunction to act in accordance with principles that have the form of law. This Kantian reading of Dworkin highlights the internal, constitutive relation between integrity and a key condition of political legitimacy that Dworkin long stressed: that (...) governments take individual rights _seriously_. Governments take individual rights seriously only by treating humanity as an end in itself, and governments treat humanity as an end in itself only by striving to act in accordance with an integrated system of practical laws. Acting with integrity, taking rights seriously and respecting humanity are thus internally related acts. (shrink)