(1994). Annex: The survey questionnaires. World Futures: Vol. 39, The Evolution of European Identity: Surveys of the Growing Edge A Report by the European Culture Impact Research Consortium (EUROCIRCON), pp. 161-164.

As the first President of the Royal Academy of Arts, Joshua Reynolds played a pivotal role in shaping the course of British art in the 18th century. In these discourses, Reynolds reflects on the nature of art, the role of the artist, and the importance of aesthetic education. With insightful commentary on the works of the Old Masters and a wealth of practical advice for aspiring artists, this volume is a must-read for anyone interested in the history of art (...) or art theory. This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work is in the "public domain in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity (individual or corporate) has a copyright on the body of the work. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and made generally available to the public. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant. (shrink)

Women’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as (...) well as in the quality of their experiences as students and faculty members and in the benefits to be reaped from their tenure. This part of the story of women’s entry into the legal academy in the 1970s and 1980s—a story of attempted admission, then inclusion, then integration and assimilation, and then, finally, equality—is now a familiar one, at least in broad outline. It is not, in its entirety, an uplifting story. According to a raft of articles produced by women law students in the 1980s, 1990s, and 2000s, women law students during those decades participated less in the classroom, were called on and responded to differently when they did participate, suffered from more law-school-induced anxiety disorders and other mental health issues, graduated with lower GPAs and less law review experience, published fewer notes and filled fewer editorial positions on those journals, held fewer leadership positions overall while in law school, and had far more difficulties connecting with mentors, teachers, and would-be recommenders among the faculty than male students. Women law professors during those decades were tenured at significantly lower rates than men and, particularly at high prestige schools and at schools with fewer female faculty among the tenured ranks, were hired at lower rates that did not reflect their number in the pool of qualified applicants, had trouble asserting or maintaining authority in the classroom or being perceived as having authority, taught lower-prestige courses and received low teaching evaluations, and, like their students, were published far less frequently in the major and most prestigious law reviews. Much of this, albeit not all, has not changed much for either students or faculty. As women in law schools enter the posttenure and midcareer phase, many of the old problems persist while new ones appear: women faculty are invited to participate on panels less often than men, and both women students and faculty are underrepresented as authors in law reviews. Although gender-neutral parental leave is now available to faculty at most law schools, many such policies are still ad hoc. There is considerable worry, although no hard evidence, over whether men disproportionately use the time off to write rather than care for children. Women are still disproportionately overrepresented in some fields and underrepresented or unrepresented in others, and those fields correlate in unsurprising ways with levels of prestige: the more women in a field, the less prestigious. As elsewhere in the workforce, women faculty in legal education suffer from sexual harassment, most of which is unremedied. Women still suffer a pay gap in law schools that remains unaddressed at most universities, as it does elsewhere in academia. There is a sizeable literature on these depressing phenomena that stubbornly do not seem to abate. In these comments, however, I want to focus on another, less appreciated, part of the story of women’s entry into the legal academy in the 1970s and 1980s: the emergence of a body of scholarship—sometimes called feminist legal theory—produced by some of these women legal scholars over the same time period. The story I want to focus on, in other words, is not that of second- or third-wave women’s struggles within the academy, either for admission, acceptance, assimilation, or equality in law schools. Rather, this Article focuses on the story of the scholarship some of those second-wave assimilated women produced once they got there. Feminist jurisprudence, understood largely as scholarship on issues pertaining to gender equality, was launched in the 1970s, endures today, and continues to shape debates. Feminist legal theory, however, was in effect a subfield within feminist jurisprudence and, as its name implies, was an attempt to fashion a broad- based theoretical account of the relationship of law in liberal legal regimes to women’s subordination, patriarchy, and gender and sexual inequality— particularly in a post–civil rights era, when women enjoyed broad access to rights of formal equality, reproductive liberty, and liberal antidiscrimination law. Feminist legal theory so understood—a body of scholarship in search of a theoretical understanding of the relation of law to women’s subordination or, more simply, of law and patriarchy—was birthed in the 1970s, nurtured in the 1980s, and matured in the 1990s. I suggest in this Article that it is now seemingly in decline, and may soon disappear altogether. The reasons for this trajectory, I believe, are to date unexplored. Some reasons are fairly self-evident. Feminist legal theory was a product of three time-specific factors peculiar to the 1970s and 1980s: it reflected the political and the legal struggles of second-wave feminism. The critical theory schools were, to varying degrees, present or thriving in the academy in the 1970s and 1980s, within which feminist legal theory was birthed, grew, and then coexisted with critical theory, albeit at times very uneasily; and this feminist theory reflected second-wave women faculty and students’ mixed experiences of assimilation, success, and alienation in law schools themselves, as briefly recited above. Those three factors—the background politics, the presence of critical theory in law schools, and the differences in women’s experience of those schools—are all themselves either disappearing or dissipating in felt urgency, albeit in different ways and at different speeds, and that dissipation clearly is a part of the story of feminist legal theory’s decline. There are other reasons for its decline as well, however. Some are internal to feminism and feminist theory, and some pertain to the changing nature of legal scholarship from the 1980s to the present. I explore these reasons in Part II below. The story of the development of a distinctively feminist legal theory during the 1970s through the 1990s, and the story of its decline in the 2000s, is of obvious relevance to the history of second- and third-wave feminism. It should also be of interest for what it reveals about the nature of legal scholarship as it was understood, received, and produced in those decades. Its decline likewise reveals something about the changing nature of legal scholarship and the legal academy today. Thus, one conclusion I draw is that the feminist legal theory of the 1970s through the 1990s—regardless of the truth or lasting power of its claims—stands as an example of a type of legal scholarship that was somewhat distinctive to those decades. That form of legal scholarship, furthermore, likely can only emanate from the legal academy. For a host of reasons, we are currently in danger of losing this entire genre of intellectual work, which would be the polity’s loss, not just feminism’s or the legal academy’s. (shrink)

Legal education in continental Europe -- The law of nature in European courts -- Legal education in England -- The law or nature in English courts -- Legal education in the United States -- The law of nature in American courts.

Legal doctrine in Continental European law (scientia iuris) consists of professional legal writings, e.g., handbooks, monographs, etc., whose task is to systematize and interpret valid law. By production of general and defeasible theories, legal doctrine aims to present the law as a coherent net of principles, rules, meta‐rules, and exceptions, at different levels of abstraction, connected by support relations. The argumentation used to achieve coherence involves not only description and logic but also evaluative (normative) steps. However, (...) sceptics criticise juristic doctrine for its normative character, ontological obscurity, vagueness, fragmentation, and locality. The author answers this criticism pointing out the following. Normative reason is possible. Liberal ontology, admitting such entities as morally justified law, is possible as well. The vagueness of legal doctrine can be construed as defeasibility. Defeasibility is inevitable in the law and in human thinking in general. Fragmentation of legal doctrine is not absolute. Its theories are linked to overarching moral theories. Finally, locality is not absolute either. Though sometimes restricted to a given state, theories of legal doctrine display relevant similarities to corresponding theories in other states. (shrink)

In the last decades, regional and global integration processes have made the traditional state-centred view of law less and less obvious. Recent discussions revolve around how to conceptually comprehend, critically reflect on and reasonably control these new developments in the global legal arena. The essays in this volume, written by young Central and Eastern European legal theorists and political scientists, contribute to ongoing discussions in our post-national era. The chapters include conceptual analyses, historical and comparative examples, as (...) well as normative discussions in legal theory, ethics, moral philosophy, constitutional theory, EU law and international relations. (shrink)

Hume is normally—and in my view, correctly—taken to be a legal conventionalist. However, the nature of Hume's conventionalism has not been well understood. Scholars have often interpreted David Hume as being largely indifferent to the specifics of the laws, so long as they accomplish their basic task of protecting people's property. I argue that this is not correct. Hume thinks certain systems of law will accomplish their purpose, of coordinating people's behaviour for the benefit of all, better than others. (...) He introduces two concepts, which I call generality and convenience, to designate those features of the law that allow it to best accomplish its purpose. Of the two, generality is the more important. The ability to implement a system of what Hume calls “general laws” is a feature common to those governments he considers “civilized” rather than “barbarous.” A set of more specific criteria may be extracted from Hume's texts, which laws must meet if they are to be considered general. Many of the criteria Hume identifies later become associated with theorists of the so-called “rule of law.” Hume's conventionalism can thus be read an important development beyond that of Hobbes, one that lays a foundation upon which later theorists such as A.V. Dicey are able to build. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

Critical theory encapsulates the many connections between theory and praxis. This Research Handbook addresses the broad range of these connections in relation to legal thought. Featuring contributions from leading scholars of law and critical theory, the Handbook confronts the logic of the institutional with its specific challenges right across the broad field of legal thought. The Research Handbook initially addresses the question of definition, tracking the origins and development of critical legal theory along (...) its European and North American trajectories. Thematic connections are made between the development of legal theory and other currents of critical thought including feminism, Marxism, critical race theory, varieties of postmodernism, as well as the various 'turns' (ethical, aesthetic, political) of critical legal theory. Finally, particular legal disciplines are examined, including labour, criminal and intellectual property law, exploring what critical approaches reveal about them with the clear focus on opportunities for social transformation. This comprehensive and forward-looking Research Handbook will be of great interest to adherents of critical legal theory and scholars of jurisprudence more widely, as it provides a valuable analysis of the latest research and thinking in this dynamic field. (shrink)

This paper offers an account of Susan Haack’s philosophy of law and points out several aspects within the legal pragmatist tradition that deserve further discussion. Firstly, a systematic presentation of legal pragmatism as it is defended by Haack, who follows Justice Oliver W. Holmes here, is given. Secondly, the limits of an evolutionary perspective of law recommended by legal pragmatism are considered. Finally, the paper discusses whether legal pragmatism is able to handle different legal traditions, (...) thereby focusing on Anglo-American common law and European civil law. (shrink)

The first collection of essays directed towards jurisprudence with a Hegelian theme. The editors are committed to the idea that Hegel is the future source of great energy and insight within the legal academy.

During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on (...) legal philosophy from both the Anglo-American and European traditions. Not only does it help make some of the best work avail able to an international audience, but it also encourages increased awareness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowed scholars. Legal philosophy should not be considered a narrowly circumscribed field. (shrink)

The first collection of essays directed towards jurisprudence with a Hegelian theme. The editors are committed to the idea that Hegel is the future source of great energy and insight within the legal academy.

The article presents the results of the analysis of international legal regulation of the protection of freedom of speech, the right to freedom of expression within the UN and the Council of Europe. A comparative analysis of the definition of the right to express views and beliefs in various international legal acts was made. The case law of the European Court of Human Rights in cases related to the exercise of the right to express one's views and (...) beliefs on the Internet was considered. The analysis of the legislation of foreign countries regulating the right to express views and beliefs online was carried out. The materials of the article are of practical value for scientists and practitioners dealing with the issues of legal regulation of freedom of speech, the right to express views and beliefs, for forecasting and planning scientific research, improving legislation, for higher education teachers in educational activities, as well as for all interested persons. (shrink)

In order to re-make the world in its own image, neoliberal expansionism is predicated on the dominance of a particular regime of reason. The dominance of economic-juridical rationality relies in no small part on education to reproduce itself. In this sense, how and why a populace is educated in the law becomes a locus of struggle and of alternative and competing constructions of normative and political orders. Over the last decade the United Kingdom’s justice policy has become more attentive to (...) the role of citizens’ knowledge of the law in the context of a reinvigorated drive toward competition in the legal services market. Reformism in legal services thereby emerges as a strategy geared toward the economisation of the state by propagating specific types of legal knowledge. This reorientation of legal education is considered through, on the one hand, the insights of recent theories of neoliberalism and, on the other, a wider lens relating the intersection of legal education to the juridical-political realm. Finally, the paper outlines alternative strategies of community-based educational practices rooted in resistance to legal and economic orthodoxies. (shrink)

After the full-scale invasion of the Russian Federation into Ukraine, the flow of forced migration from Ukraine has significantly increased as people tried to protect their lives and find a safe place to live. Given that Ukraine shares the external border with the European Union, most people sought protection precisely in the Member States of the European Union. The study aims to analyze the features of the legal regulation of the provision of temporary protection in the (...) class='Hi'>European Union and determine the reasons and conditions that led to its activation after the full-scale invasion of the Russian Federation into Ukraine on February 24, 2022. The leading method of the research was the method of systematic analysis, which helped define temporary protection as a multifaceted phenomenon and determine the reasons and conditions that led to its activation in the European Union after the full-scale invasion of the Russian Federation into Ukraine on February 24, 2022. In order to regulate the mass influx of Ukrainian displaced persons, the European Union has activated the mechanisms of temporary protection, which is an emergency mechanism introduced by a decision of the Council of the European Union. The status of a person with temporary protection provides certain rights analyzed in the article. Thus, the activation by the European Union of the Temporary Protection Directive is a justified and appropriate measure to protect the mass influx of displaced persons from Ukraine. (shrink)

A Theory of Interpretation of the European Convention on Human Rights provides a philosophically informed study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-Americal legal, political and moral philosophy, the book also aims to provide a normative theory of the foundations of the ECHR rights.

This article examines a recent judgment by the European Court of Human Rights that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, (...) and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe. (shrink)

It is often assumed that cosmopolitan thinkers since the Renaissance have simply adopted and refined concepts from classical antiquity. This study argues that modern European cosmopolitanism should be perceived as a unique phenomenon, distinct from Greek and Roman forms of cosmopolitan thinking. One key feature is its dynamism, or the idea of change built into modern theories of cosmopolitanism. Covering the period from the 1530s to the 1920s, this book investigates various manifestations of cosmopolitanism, including normative individualism, the dawn (...) of historical thinking, and the dynamic conceptions of law and rights and of the international community. It analyses the international legal theories of selected authors from Francisco de Vitoria to Austrian lawyers Heinrich Lammasch and Alfred Verdross. The author focuses in particular on the development of hospitality rights and the right to immigration, republicanism and cosmopolitanism, and cosmopolitan education. (shrink)

Connected to the jurisprudence surrounding the copyrightability of a factual compilation, this book locates the footprints of the standard envisaged in a US Supreme court decision (Feist) in Europe. In particular, it observes the extent of similarity of such jurisprudence to the standard adopted and deliberated in the European Union. Many a times the reasons behind law making goes unnoticed. The compelling situations and the history existing prior to an enactment helps in understanding the balance that exists in a (...) particular legislation. While looking at the process of enacting the Database Directive (96/9/EC), this book reflects upon the concern that was expressed with the outcome of Feist decision in Europe. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Toward the Materiality of Aesthetic ExperiencePeter de Bolla (bio)Over the last twenty years or so it has become a commonplace in discussions of "aesthetics" or of "art" in the most general sense to note that the term "aesthetics" was only very recently invented by Alexander Baumgarten in 1735, where it appears in his Meditationes philosophicae de nonnullis ad poema pertinentibus [see Menke 40; Dickie; Eagleton]. But the force of (...) this observation in regard to the relative youth of the concept is rarely, if ever, commented upon. As many philosophers and critics have pointed out, Baumgarten's use of the term was not primarily angled at what today might be unproblematically called "artworks"—say, paintings in the European grand master tradition—since his new kind of investigation was to be a "science of sensual recognition," that is, a general inquiry into how we come to know the world from the evidence of our senses. But, as is also frequently remarked, early on in the tradition of speculation now associated with "aesthetics as the study of art" the mutual attraction (to put it in the most anodyne terms) of "art" and "aesthetics" seems to have been extremely strong. As Jonathan Ree remarks, "the real begetter of the philosophical doctrine connecting the arts with the empirical senses—what we might call the aesthetic theory of the arts—was Gotthold Ephraim Lessing" [58]. From this point on (for heuristic purposes it may be identified with the date of publication of Lessing's Laokoon in 1766), artworks, which heretofore had not required a specific branch of inquiry in order for them to make sense or be conceptually grounded as art, are almost universally assumed to require "aesthetic" contemplation or appreciation.1 It is curious, then, that before 1766 such a mode of experiencing artworks had not been felt to be lacking.One might understand this observation both historically and philosophically, and both approaches, it seems to me, are needed. In the case of the first, a number of material effects conspired across mid-eighteenth-century Europe to produce what was in essence the modern art market. These include the legal establishment of copyright, first in England in 1709 but only by the end of the century in France and Germany; the foundation of various institutions whose primary purpose was the promotion and establishment of the fine arts: academies of painting, sculpture, or letters either with or without royal patronage; the public exhibition of paintings (from 1737 in France and 1761 in England); the opening of royal collections to public view (during the second half of the century in London, Paris, Munich, Vienna and Rome); the development of public concerts of secular music (in small scale from the 1670s in England but only becoming fully integrated in fashionable social life by mid-century); the construction of purpose-built concert venues (the Gewandthaus in Leipzig, a former cloth merchant's hall, was remodeled in 1781 in order to accommodate a resident orchestra, in effect becoming the first dedicated concert hall in Europe); the foundation of literary periodicals and review media; the emergence of social spaces and rituals encompassing polite discussion of [End Page 19] literature (coffeehouses, the construction of dedicated library rooms in domestic settings); and the promotion of architecture to a fine art through various societies, competitions, and the public display of architectural drawings in exhibition contexts (the Royal Academy yearly show included both drawings and models). These and other material conditions helped define the fine arts and construct a market in and for them.2 By the 1770s the category of the "fine arts" was well established in Britain, Germany, and France: Charles Batteux's Les beaux arts reduit a un meme principe, first published in France in 1746, was quickly translated into English as The Polite Arts; or, a Dissertation on Poetry,Painting, Musick, Architecture, and Eloquence in 1749 and into German in 1751. By 1771 a four-volume General Theory of the Fine Arts had been published for the German public by J. G. Sulzer.All of this points to the fact that the concept of the "artwork" is subject to both historical and material pressures. Prior to the mid-eighteenth... (shrink)

The last decade has witnessed a particularly intensive debate over methodological issues in legal theory. The publication of Julie Dickson's Evaluation and Legal Theory (2001) was significant, as were collective returns to H.L.A. Hart's 'Postscript' to The Concept of Law. While influential articles have been written in disparate journals, no single collection of the most important papers exists. This volume - the first in a three volume series - aims not only to fill that gap but (...) also propose a systematic agenda for future work. The editors have selected articles written by leading legal theorists, including, among others, Leslie Green, Brian Leiter, Joseph Raz, Ronald Dworkin, and William Twining, and organized under four broad categories: 1) problems and purposes of legal theory; 2) the role of epistemology and semantics in theorising about the nature of law; 3) the relation between morality and legal theory; and 4) the scope of phenomena a general jurisprudence ought to address. (shrink)

The issue of whistleblower protection has been gaining more attention in recent years, especially after the passing of Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019 on the protection of persons who report breaches of Union law. However, there is a fundamental question as to whether the regulations are sufficient to provide real protection for whistleblowers in organizations. In this regard, it seems crucial that the various actors (legislators, managers, employees) work together (...) to create an appropriate social environment. In this context, it is worth considering the use of knowledge of human decision-making processes, with particular emphasis on the possibility of modifying choice architecture and influencing decisions without imposing specific solutions. Nudging can be used in the “foreground” of legal regulation, by adjusting the social environment in such a way that legal regulation can work effectively. The paper provides an introduction to the application of nudge theory in the context of legal protection of whistleblowers. (shrink)

This paper presents an analysis of the issue that as yet not been extensively researched in the doctrine of Lithuanian and foreign law: the issue of legal distinguishing between medicinal products and food supplements. In order to analyze the problems of theory and practice, the structure of the paper is divided into two parts. The first part concentrates on the main features of medicinal products and food supplements in accordance with the case law of the Court of Justice (...) of the European Union (CJEU). It is established that medicinal products must comply with one of these descriptions: be made and aimed towards healing and preventing sicknesses; cause serious threats to health or have health-hazardous secondary effects; and have very intense effects on physiological features of human organisms. Food supplements in theory should not have these features. However, sometimes in practice preparations identified as food supplements have large doses of certain medicinal substances or other ingredients (e.g. alcohol, plant extracts, vitamins, amino acids, and etc.) that present threats to human health. The practice of the CJEU shows that counterbalancing free movement and public health protection interests is problematic in this area. (shrink)

The Logic of Liberal Rights uses basic logic to develop a model of argument presupposed in all disputes about civil rights and liberties. No prior training in logic is required, as each step is explained. This analysis does not merely apply general logic to legal arguments but is also specifically tailored to the issues of civil rights and liberties. It shows that all arguments about civil rights and liberties presuppose one fixed structure and that there can be no original (...) argument in rights disputes, except within the confines of that structure. Concepts arising in disputes about rights, like 'liberal' or 'democratic', are not mere abstractions but have a fixed and precise character. This book integrates themes in legal theory, political science and moral philosophy, as well as the philosophy of logic and language. For the advanced scholar, the book provides a model presupposed by leading theoretical schools . For the student it provides a systematic theory of civil rights and liberties. Examples are drawn from the European Convention in Human Rights but no special knowledge of the Convention is assumed, as the issues analysed arise throughout the world. Such issues include problems of free speech, religious freedom, privacy, torture, unlawful detention and private property. (shrink)

This volume explores the reasons for Hans Kelsen’s lack of influence in the United States and proposes ways in which Kelsen’s approach to law, philosophy, and political, democratic, and international relations theory could be relevant to current debates within the U.S. academy in those areas. Along the way, the volume examines Kelsen’s relationship and often hidden influences on other members of the mid-century Central European émigré community whose work helped shape twentieth-century social science in the United States. (...) The book includes major contributions to the history of ideas and to the sociology of the professions in the U.S. academy in the twentieth century. Each section of the volume explores a different aspect of the puzzle of the neglect of Kelsen’s work in various disciplinary and national settings. Part I provides reconstructions of Kelsen’s legal theory and defends that theory against negative assessments in Anglo-American jurisprudence. Part II focuses both on Kelsen’s theoretical views on international law and his practical involvement in the post-war development of international criminal law. Part III addresses Kelsen’s theories of democracy and justice while placing him in dialogue with other major twentieth-century thinkers, including two fellow émigré scholars, Leo Strauss and Albert Ehrenzweig. Part IV explores Kelsen’s intellectual legacies through European and American perspectives on the interaction of Kelsen’s theoretical approach to law and national legal traditions in the United States and Germany. Each contribution features a particular applications of Kelsen’s approach to doctrinal and interpretive issues currently of interest in the legal academy. The volume concludes with two chapters on the nature of Kelsen’s legal theory as an instance of modernism. (shrink)

This paper provides a queer critique of the European Court of Human Rights’ use of ‘European consensus’ as a method of interpretation in cases concerning sexuality rights. It argues that by routinely invoking the notion of ‘consensus’ in such cases, the Court (re)produces discourses and induces performances of sexuality and Europeanness that emphasise sameness and agreement, while simultaneously suppressing expressions of difference and dissent. As a result, this paper contends that the Court’s use of European consensus has (...) ultimately functioned to uphold and sustain the heteronormative order that underpins both the European Convention on Human Rights (ECHR) and European society more generally. This is so, despite the role that European consensus has played in the Court’s recognition of ‘new’ rights for lesbian, gay and bisexual people under the ECHR. Drawing on insights from queer theory, as well as the work of Rancière and Foucault, this discussion is carried out through a close reading of Strasbourg cases relating to sexuality. (shrink)

New techniques in genome editing have led to a controversial debate about the opportunities and uncertainties they present for agricultural food production and consumption. In July 2018, the Court of Justice of the European Union defined genome editing as a new process of mutagenesis, which implies that the resulting organisms count as genetically modified and are subject, in principle, to the obligations of EU Directive 2001/18/EG. This paper examines how key protagonists from academia, politics, and the economy strategically framed (...) the debate around genome editing in agriculture in Germany prior to its legal classification by the Court of Justice. It is based on an analysis of 96 official statements, including position papers, press releases, and information brochures. Our study reveals eight strategic frames used in the discourse on genome editing and uncovers the strategies used to disconnect from or connect with the previous discourse on green genetic engineering in the 1970s, 1980s and 1990s. Building on competitive framing theory, the study provides explanations for the use and emergence of counter-framing strategies and their success or failure in the debate around genome editing. (shrink)

The way comparative law methodology is handled by the variety of experiences of normative complexity around the world is, in itself, a stimulating and promising field of research. In particular, the “hybrid” character of the European Union legislation, being juridical and linguistic at the same time, remains the core of comparative law studies, but the dynamic relationship between law and language is constanlty producing ever-changing scenarios, calling for combined scientific approaches. Along with comparative law, semiotics in particular has ensured (...) the proper reading of the complex juridical and linguistic interconnections between the EU legislation and the national courts interpreting and applying them, thanks to its implicit dynamicity and ability to favor the visualization of the real normative semantic flow. By means of a case study, the opening of this “Pandora’s box” will demonstrate that, despite the lack of correspondence among EU categorical and conceptual structure, legal language, court enforcement and spirit of the people (social group), shared contexts of meanings within the EU and the national contexts are already flourishing and become visible when approached from a specifically comparative and semiotics point of view, that's to say as legal _formants_ and as _signs_ and _meta-concepts._. (shrink)

This book critically examines the conception of legal science and the nature of law developed by Hans Kelsen. It provides a single, dedicated space for a range of established European scholars to engage with the influential work of this Austrian jurist, legal philosopher, and political philosopher. The introduction provides a thematization of the Kelsenian notion of law as a legal science. Divided into six parts, the chapter contributions feature distinct levels of analysis. Overall, the structure of (...) the book provides a sustained reflection upon central aspects of Kelsenian legal science and the nature of law. Parts one and two examine the validity of the project of Kelsenian legal science with particular reference to the social fact thesis, the notion of a science of positive law and the specifically Kelsenian concept of the basic norm. The next three parts engage in a critical analysis of the relationship of Kelsenian legal science to constitutionalism, practical reason, and human rights. The last part involves an examination of the continued pertinence of Kelsenian legal science as a theory of the nature of law with a particular focus upon contemporary non-positivist theories of law. The conclusion discusses the increasing distance of contemporary theories of legal positivism from a Kelsenian notion of legal science in its consideration of the nature of law. (shrink)

The book carries on Posner's project of analyzing the law as an institution of social governance.

In 2023, the Grand Chamber of the European Court of Human Rights issued its ruling in the case of Sanchez v France. The case revolved around the conviction of the applicant, a politician, for inciting hatred or violence against people due to their religious affiliation. What makes this case unique among hate speech cases before the Strasbourg Court was that the applicant’s conviction did not stem from his own words but rather from his alleged failure to promptly remove commends (...) made by others under one of his (non-offensive) Facebook posts. This case has prompted a myriad of significant questions, the main one being, how an earth did we reach a point where imposing a criminal penalty on an internet user for someone else’s speech and how does such a penalty align with the principles of necessity and proportionality outlined in Article 10 of the European Convention on Human Rights (freedom of expression)? This paper aims to address this question by examining the Court’s approach to hate speech, particularly in the realm of politics, how to the Court situates politicians within the scope of Article 10 and how the gradual expansion of ‘duties and responsibilities’ incorporated in Article 10 to engulf those who are not the actual speakers (namely internet intermediaries and, with Sanchez individual politicians). It concludes that Sanchez constitutes a worrying term for the very worst of hate speech and free speech jurisprudence as individuals (at the moment just politicians) have a duty to be vigilant of what others say on the former’s social media pages. If they are not, criminal penalties are deemed to be justified and legitimate by Strasbourg. (shrink)

In the cases of Goodwin v. U.K.and I. v. U.K. the European Court of Human Rights held the U.K. Government to be in breach of Articles 8 and 12 of the European Convention for denying certain rights and entitlements, particularly the right to marry, to post-operative transsexuals. This article argues that although on some level these are welcome decisions, they are also conservative and recuperative in that they seek to shore up traditional binarist ideas of gender and sexuality. (...) The article concludes, however, that the Court's conservatism is problematic in a number of ways; and that it may be most profitable to read these cases as an invitation to imagine further and more profound challenges to the old order. (shrink)

During the first few decades of the twentieth century, legal theory on both sides of the Atlantic was characterized by a tremendous amount of skepticism toward the private law concepts of property and contract. In the United States and France, Oliver Wendell Holmes and François Gény led the charge with withering critiques of the abuse of deduction, exposing their forebears' supposedly gapless system of private law rules for what it was, a house of cards built on the ideological (...) foundations of laissez faire capitalism. The goal was to make the United States Constitution and the French civil code more responsive to the realities of industrialization. Unlike the other participants in this transatlantic critique, François Gény simultaneously insisted on the immutability of justice and social utility. His “ineluctable minimum of natural law” would guide judges and jurists toward the proper social ends, replacing deduction with teleology. The problem was that nearly all of Gény's contemporaries were perplexed by his conception of natural law, which lacked the substance of the natural rights tradition of the eighteenth and nineteenth centuries and the historicist impulse of the early twentieth. No one was more perplexed than Oliver Wendell Holmes, whose more thorough going skepticism led him to see judicial restraint as the only solution to the abuse of deduction. The ultimate framework for this debate was World War I, in which both Holmes and Gény thought they had found vindication for their views. Events on the battlefield reaffirmed Gény's commitment to justice just as they reignited Holmes' existential embrace of the unknown. In a sense, the limits of their skepticism would be forged in the trenches of the Great War. (shrink)

The article is devoted to the historical analysis of teleological argumentation evolution in the legal interpretation. The ideas of ancient Greek and Roman orators, philosophers and lawyers, which served as the basis for development of the idea of teleological interpretation in the European legal tradition, are examined. The history of teleological interpretation method development in European legal theory from Medieval jurists to sociological legal approach of the late 19 th and 20 th centuries (...) is observed, as well the existence of two main approaches in understanding the teleological method of interpretation, namely subjective-teleological and objective-teleological, is ascertained. The author states that there is a direct correlation between the concept of law and the approach to understanding of the teleological interpretation method. In conclusion, the author insists on the more progressive nature of the objective-teleological method of legal interpretation. (shrink)