J. S. Mill regards individuality as the most fundamental of human interests–theprincipal condition of and main ingredient in self-development. But in addition tothe individualist-functionalist element in Mill’s thought there is also a strongelement of fallibilism derived from an empiricist view of the nature and possibilities of human knowledge. A corollary of Mill’s fallibilism is his conception of human nature as essentially open and incomplete. His doctrine of individuality and self-development, on the other hand, implies that the individual is definable by (...) certain necessary and permanent characteristics. Following a discussion of the empiricist and fallibilist strain in Mill’s liberalism, the present paper offers an interpretation of Mill’s view that reconciles these two seemingly discordant elements in his understanding of man. (shrink)

Much of contemporary British legal theory has its roots in the tradition of philosophical empiricism—the philosophical position that no theory or opinion can be accepted as valid unless verified by the test of experience. In this context normativity, both in law and morals, is understood and explained in terms of social practices observable in the world. The nineteenth-century jurist John Austin, for example, defined law in terms of a command supported by a sanction and as presupposing the habitual obedience of (...) the bulk of a community to the commands of a sovereign himself not habitually obedient to anyone else. Similarly, Hart's conception of legal obligation, although somewhat more complex, derived from the observation of people's actual practices analyzed in terms of "the internal point of view" crucial to their comprehension of and participation to these practices. It is within this framework that we must consider the distinction between is and ought as used by British positivist theories and which is so essential to positivist jurisprudence. In this respect a chief difference between the British and the Continental traditions in legal theory prevails. This paper aims to re-examine some main themes of contemporary jurisprudence and explore the extent to which contemporary theorists, both British and Continental, have succeeded in developing a theory of law that would create a workable marriage between the two traditions. (shrink)

This unique publication offers a complete history of Roman law, from its early beginnings through to its resurgence in Europe where it was widely applied until the eighteenth century. Besides a detailed overview of the sources of Roman law, the book also includes sections on private and criminal law and procedure, with special attention given to those aspects of Roman law that have particular importance to today's lawyer. The last three chapters of the book offer an overview of the history (...) of Roman law from the early Middle Ages to modern times and illustrate the way in which Roman law furnished the basis of contemporary civil law systems. In this part, special attention is given to the factors that warranted the revival and subsequent reception of Roman law as the 'common law' of Continental Europe. Combining the perspectives of legal history with those of social and political history, the book can be profitably read by students and scholars, as well as by general readers with an interest in ancient and early European legal history. The civil law tradition is the oldest legal tradition in the world today, embracing many legal systems currently in force in Continental Europe, Latin America and other parts of the world. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. Roman law is both in point of time and range of influence the first catalyst in the evolution of the civil law tradition. (shrink)

The question of excusing in law has been the subject of different philosophical theories of responsibility. These theories attempt to shed light on the nature and function of legal excuses and to justify their role in the criminal justice system. This paper examines the issue of excusing in law from two theoretical standpoints: the character theory and the choice theory of responsibility. The two theories differ on the kinds of causes of action they each find to provide the basis for (...) holding people responsible. The character theory focuses on character, the choice theory on choice and the capacity to choose. Following a brief introduction in which the fundamental distinction between justification and excuse is outlined, the character theory of responsibility is explained with special attention being paid to the work of George Fletcher, which has made a significant impact on the field of criminal law philosophy in recent years. Then follows a critical discussion of the choice theory as elaborated by H.L.A. Hart, one of the most influential legal theorists of our times. The paper concludes that the character theory of responsibility, by drawing attention to what lies behind and motivates actual choices, offers a better basis for interpreting the moral significance of human actions and for explaining our actual blaming judgements regarding those actions. (shrink)