Imbalance in analytical legal theory's approach to prima facie legal phenomena : re-balancing after imbalance : an incremental addition to analytical legal theory -- Legal officials, the rule of recognition, and international law -- The hierarchical view of legal system and non-state legality -- Meta-theoretical-evaluative motivations -- An inter-institutional theory -- An inter-institutional account of non-state legality -- Pathologies of legality : novel technologies and their implications for conceptions of legality : the consequences of re-socializing a descriptive-explanatory view of law.

Battle Hall Davies' brother Nick ran away from home when she was in high school. Now he has found her and she is going to stay with him for the summer before starting college. Battle discovers that neither she nor her brother is the person she thought they were.

This is a collection of Canadian legal decisions, primarily from the Supreme Court of Canada, along with international cases that have bearing on Canadian law. The selected cases raise and respond to current and controversial issues in political and legal philosophy. Cases have been edited to present key legal principles and methods of judicial reasoning in action, showing not only what was decided but also how the decisions were made. Topics include: constitutional law, fundamental freedoms, equality rights, civil and criminal (...) responsibility, and sovereignty. This new fifth edition adds over two dozen new cases, including new sections on Indigenous issues and international law. A helpful glossary of common legal terms has also been added as an appendix. (shrink)

A rigorous introduction to profound questions about the nature and role of law.

This article supports H. L. A. Hart's “any reasons” thesis (defended consistently from the first edition of The Concept of Law in 1961 to the Postscript to the second edition of 1994) that legal officials may accept law for any reasons, including non‐moral reasons. I develop a conception of non‐moral aesthetic ideals of official conduct which may provide legal officials with reasons to accept and apply even morally iniquitous law. I use this conception in order to rebut Gerald Postema's and (...) Joseph Raz's criticisms of Hart's view, and suggest that my revisions offer reasons for renewed confidence in Hart's account of law's normativity. (shrink)

Abstract:We aim in this paper to explore several related challenges to contemporary analytical legal theorists who accept as theoretically foundational the state-based view of legality and legal system advanced by H.L.A. Hart. We contend that this approach contains internal explanatory problems which limit the view’s capacity to account for novel prima facie legal phenomena outside the typical experience of the law-state. We supplement the analytical approach by advancing the rudiments of what we call an ‘inter-institutional theory of legality,’ a theory (...) of legality derived from a morally-neutral, descriptive-explanatory picture of legal system qua system of legal institutions. Our theory additionally enables us to account for the novel prima facie legal phenomena we identify, and to conclude that while prior analytical legal theorists’ approaches to legality and legal system were historically right to depart from the example of the municipal legal system, that example and departure point are no longer most salient, so explanation of the legality within the state is no longer sufficient as a general explanation of legality.Resumen:En este artículo los autores se proponen explorar diversos retos que enfrentan los teóricos analíticos del derecho contemporáneos, los cuales han aceptado que una perspectiva estatista del sistema jurídico y de la legalidad —introducida por H. L. A. Hart— es fundamental como punto de partida en la teoría. Los autores sostienen que este enfoque contiene problemas explicativos internos que limitan su capacidad para explicar fenómenos jurídicos prima facie novedosos que no se ajustan a la experiencia paradigmática de un derecho-estado. Los autores reformulan el enfoque analítico mediante la introducción de las bases de lo que deno minan una “teoría de la legalidad interinstitucional”, esto es, una teoría de la legalidad derivada de una noción moralmente neutral, descriptiva y explicativa del sistema jurídico como un sistema de instituciones jurídicas. Esta teoría permite, además, explicar los fenómenos jurídicos prima facie novedosos que identifican los autores; y concluir que si bien los enfoques anteriores hacia el sistema jurídico y la legalidad de los teóricos analíticos estuvieron históricamente en lo correcto al tomar como punto de partida el ejemplo de un sistema jurídico municipal, ese ejemplo y punto de partida han dejado de ser relevantes, dicho ejemplo y punto de partida no resulta suficiente, por lo que la explicación de la legalidad dentro de los confines del Estado no es suficiente para una explicación general de la legalidad. (shrink)

This article identifies and advocates one part of a renewed research agenda for analytical legal theory: a renewed ‘relational’ approach to characterization of the concept of law, following the lead set by Hart’s exploration of law’s relation to morality, coercion, and social rules. We advocate further descriptive-explanatory investigation of law’s relation to security, environment, and information technology, in the context of state and extra-state legal orders. This investigation is responsive to emerging legal phenomena as identified by the inter-institutional account of (...) legality developed in our recent book Legality’s Borders (Oxford University Press, 2010), and is further responsive to the interests and perspective of a modernized version of Hart’s ‘ordinary citizen.’ A renewed relational approach will provide a means to deeper characterization of the forms of legality arising within and around the increasingly unsteady municipal state in the modern era of increased interdependence and interconnection amongst state and extra-state legal orders.Resumen:El objetivo de este artículo es identificar y defender una parte de la renovada agenda de investigación de la teoría jurídica analítica: un renovado enfoque “relacional” sobre la manera de caracterizar el concepto de derecho —siguiendo la línea trazada por Hart de investigar la relación del derecho con la moral, la coerción y las reglas sociales—. Nosotros defendemos una investigación adicional de carácter descriptivo-explicativo sobre la relación que tiene el derecho con la seguridad, el medio ambiente y las tecnologías de la información, en el contexto de disposiciones jurídicas estatales y extra-estatales. Esta investigación responde a fenómenos jurídicos recientes del modo en que fueran identificados por la tesis inter-institucional de la legalidad desarrollada en nuestro reciente libro Legality’s Borders (Oxford University Press, 2010), y asimismo responde a los intereses y a la perspectiva de una versión modernizada del “ciudadano ordinario” de Hart. Un renovado enfoque “relacional” proporcionará los medios para un análisis más profundo de las formas de legalidad que surgen al interior y alrededor del cada vez más inestable estado municipal, en la era moderna de una mayor interdependencia e interconexión entre las disposiciones jurídicas estatales y extra-estatales. (shrink)

The second edition of Readings in the Philosophy of Law is a concise anthology of key arguments in the philosophy of law, organized around the ideas of law and legal reasoning, limits on individual liberty, responsibility, and international law. Selections new to this edition update the anthology while continuing to present legal theory as a set of closely intertwined arguments. Critical Race Theory is addressed, as are challenges to legal theory posed by the emergence of the European Union. The readings (...) provide superb coverage of both classic and contemporary views, and they are edited only lightly to allow readers to grapple with arguments in their original form. Culver's clear, accessible introductions discuss key terms, claims, issues, connections and points of conflict in each section. Culver takes particular care to place arguments in their historical and social context, with analogies and examples emphasizing the continuing relevance of historical and contemporary arguments. (shrink)

Analytical jurisprudence often proceeds with two key assumptions: that all law is either contained in or traceable back to an authorizing law-state, and that states are stable and in full control of the borders of their legal systems. What would a general theory of law be like and do if these long-standing presumptions were loosened? The Unsteady State aims to assess the possibilities by enacting a relational approach to explanation of law, exploring law's relations to the environment, security, and technology. (...) The account provided here offers a rich and renewed perspective on the preconditions and continuity of legal order in systemic and non-systemic forms, and further supports the view that the state remains prominent yet is now less dominant in the normative lives of norm-subjects and as an object of legal theory. (shrink)

After surveying and criticizing some earlier definitions of "disease", we propose that a general term--malady--be used to represent what all diseases, illnesses, injuries, etc., have in common. We define a malady as the suffering, or increased risk of suffering an evil in the absence of a distinct sustaining cause. We discuss the key terms in the definition: evil, distinct sustaining cause, and increased risk. We show that the role of abnormality is to clarify these terms rather than to be used (...) directly in the definition of malady. (shrink)

This article critically considers calls for the precautionary principle to inform judicial decision making in a private law context in light of the Hoffman litigation, where it is alleged that the potential for genetic contamination from genetically modified (GM) crops causes an unreasonable interference with the rights of organic farmers to use and enjoy their lands, giving rise to an actionable nuisance. Applying the precautionary principle in this context would likely privilege non-GM land uses over GM uses, given the latter's (...) uncertain environmental impacts. Through a comparison of the institutional characteristics and respective roles of public and private regulation, the authors argue that the private law context, which lacks democratic accountability and has a limited ability to address complex scientific issues, is poorly suited to apply the diffuse, policy-based risk allocation considerations raised by the precautionary principle. (shrink)

In his article 'Specifying, balancing and interpreting bioethical principles' (Richardson, 2000), Henry Richardson claims that the two dominant theories in bioethics - principlism, put forward by Beauchamp and Childress in Principles of Bioethics , and common morality, put forward by Gert, Culver and Clouser in Bioethics: A Return to Fundamentals - are deficient because they employ balancing rather than specification to resolve disputes between principles or rules. We show that, contrary to Richardson's claim, the major problem with principlism, either (...) the original version, or the specified principlism of Richardson, is that it conceives of morality as being composed of free-standing principles, rather than as common morality conceives it, as being a complete public system, composed of rules, ideals, morally relevant features, and a procedure for determining when a rule can be justifiably violated. (shrink)

Hacohen’s biography of Popper arrives with the usual effusive praise dominating the dustjacket. This is that rare book which actually justifies commentators’ praise. At 551 pages of text, the book is very large to be concerned with only “formative years.” The length is justified because of the way Hacohen integrates careful historical work with a comprehensive grasp of what is philosophically significant in the life of one of the twentieth century’s most influential philosophers. This book achieves a measure of clarity (...) which most of us desire without achieving, its historical arguments are comprehensively documented, and it advances carefully and persuasively the general thesis that the fullest understanding of the legacy of Sir Karl Popper requires that we understand his roots in fin de siècle Viennese culture. Hacohen’s biography is somewhat different from the style familiar to philosophers from Ray Monk’s works on Wittgenstein and Russell, or Michael Ignatieff’s biography of Berlin. Hacohen’s biography is much less revealing of Popper the man, and much more revealing of social context. Accordingly, those looking for penetrating anecdotes will be disappointed, while those willing to entertain a thorough rereading of Popper will be enthralled. (shrink)

Modern Theories of Justice is a synopsis of views developed by distinguished French economist and philosopher Serge-Christophe Kolm in over four decades of investigation into the foundations of economics and justice. This book, his first written in English, is a comprehensive introduction to his vision of a “Liberal Social Contract” as “Practical Justice” for real societies and real people.

This volume is the first of a new group of collections in the Cambridge Studies in Philosophy and Law series. Each volume of the series will involve collaboration between editor and authors aimed at giving these volumes a sort of thematic unity often lacking in attempts to collect state of the art thinking on a particular topic. If the quality of this offering is representative of what is to come, we have much to look forward to in subsequent volumes.

In this recent addition to the Cambridge Studies in Philosophy and Law series, John Martin Fischer and Mark Ravizza offer the culmination of their efforts of the last several years to devise a comprehensive account of moral responsibility, based in large part on their notion of “guidance control”. This comprehensive account is presented not as the last word on the matter, but rather as a “philosophical explanation”. This valuable contribution to current debate offers rich resources for those concerned to dispel (...) some of the confusion at the intersection of ascriptions of legal and moral responsibility. (shrink)

This brief book is a manifesto for a new kind of legal theory: cultural study of law and the rule of law in American experience. Heavily post-modern in orientation, style, and sources, Kahn draws from philosophical, traditionally legal, historical, and anthropological sources to illustrate the prospective benefits of this kind of cultural study. This work is a kind of prolegomenon to future work, substantially short of the comprehensive cultural study of American legal experience it proposes. At this level it is (...) perhaps a success—and at the same time this book is deeply frustrating, because Kahn rarely draws out the implications of the fascinating suggestions he offers. (shrink)

Book reviewed in this article: To Hurt and To Heal. University of California Media Extension Center.

An advertising firm''s ethical culture (as defined by the firm''s managerial and peer ethical behaviors) may affect the employees'' comfort levels and ethical behaviors. In this research, scenarios were used to describe advertising firms with various ethical cultures. Respondents'' perceived comfort levels in working for the firms described in the scenarios and the respondents'' behavioral intentions when faced with various advertising situations were assessed. Results of the study indicate that peer ethical behavior exerts a strong influence on the comfort or (...) discomfort level and the ethical behavioral intentions of potential advertising employees. Further, the strong influence exerted by peers seems to transcend the ethical behavior of the manager and carry over to the attitude toward the entire corporate advertising environment. This study provides insights for firms and researchers interested in assessing the impact of an advertising firm''s ethical culture on potential employees. (shrink)

Many journalists, readers and scholars exhibit confusion concerning the nature and justification of deception. In this article, we clarify those acts that should count as deception. Before discussing if any cases of deception can be construed as morally justified, we clarify which investigative, interrogative, and information-giving techniques are deceptive on their face. We also bracket borderline cases.

Book reviewed in this article: Philosophy in Medicine: Conceptual and Ethical Problems in Medicine and Psychiatry. By Charles M. Culver and Bernard Gert. Psychiatric Ethics. Edited by Sidney Block and Paul Chodoff. Man, Mind, and Morality: The Ethics of Behavior Control. By Ruth Macklin.

Although the definition of a mental disorder has remained essentially the same from Diagnostic and Statistical Manual of Mental Disorder, Third Edition, Revised (DSM-III-R) through DSM-IV to DSM-IV-TR, the account of the paraphilias has changed continually. Although the definition in all the DSMs explicitly rules out deviant sexual behavior as sufficient for labeling someone as having a mental disorder, deviant sexual behavior counts as sufficient for all the paraphilias in DSM-III-R. In DSM-IV, the account of all the paraphilias is made (...) consistent with the definition. In DSM-IV-TR, mere deviant sexual behavior is not sufficient for being classified as having a paraphilia, but immoral deviant sexual behavior is. Thus, in DSM-IV-TR, only those paraphilias that involve immoral deviant sexual behavior are inconsistent with the definition, but deviant sexual behavior by itself does not count as a mental disorder. (shrink)

BackgroundDespite rapid growth of the scientific literature, no consensus guidelines have emerged to define the optimal criteria for editors to grade submitted manuscripts. The purpose of this project was to assess the peer reviewer metrics currently used in the surgical literature to evaluate original manuscript submissions.MethodsManuscript grading forms for 14 of the highest circulation general surgery-related journals were evaluated for content, including the type and number of quantitative and qualitative questions asked of peer reviewers. Reviewer grading forms for the seven (...) surgical journals with the higher impact factors were compared to the seven surgical journals with lower impact factors using Fisher’s exact tests.ResultsImpact factors of the studied journals ranged from 1.73 to 8.57, with a median impact factor of 4.26 in the higher group and 2.81 in the lower group. The content of the grading forms was found to vary considerably. Relatively few journals asked reviewers to grade specific components of a manuscript. Higher impact factor journal manuscript grading forms more frequently addressed statistical analysis, ethical considerations, and conflict of interest. In contrast, lower impact factor journals more commonly requested reviewers to make qualitative assessments of novelty/originality, scientific validity, and scientific importance.ConclusionSubstantial variation exists in the grading criteria used to evaluate original manuscripts submitted to the surgical literature for peer review, with differential emphasis placed on certain criteria correlated to journal impact factors. (shrink)