George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.001.0001
- Subject:
- Political Science, American Politics
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new ...
More
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.Less
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.
Michael Keating
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240760
- eISBN:
- 9780191599644
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240760.001.0001
- Subject:
- Political Science, Comparative Politics
Nationality claims are often seen as zero‐sum politics involving incompatible conceptions of the polity. Nationalism and self‐determination are seen as equivalent to separatism. Rethinking the ...
More
Nationality claims are often seen as zero‐sum politics involving incompatible conceptions of the polity. Nationalism and self‐determination are seen as equivalent to separatism. Rethinking the concepts of nationality, self‐determination, and sovereignty and placing them in a historic context allows us to treat them as more tractable and as a form of politics. This is done through a study of the UK, Spain, Belgium, and Canada. Traditions of shared sovereignty are rediscovered. Analysis of the demands of minority nationalisms shows that these do not always entail separate statehood. Public opinion is more open than often assumed. Asymmetrical constitutional arrangements provide a means of accommodating plural national claims. The emerging European polity is a model for a post‐sovereign order in which legal pluralism and constitutional diversity can accommodate multiple nationality claims.Less
Nationality claims are often seen as zero‐sum politics involving incompatible conceptions of the polity. Nationalism and self‐determination are seen as equivalent to separatism. Rethinking the concepts of nationality, self‐determination, and sovereignty and placing them in a historic context allows us to treat them as more tractable and as a form of politics. This is done through a study of the UK, Spain, Belgium, and Canada. Traditions of shared sovereignty are rediscovered. Analysis of the demands of minority nationalisms shows that these do not always entail separate statehood. Public opinion is more open than often assumed. Asymmetrical constitutional arrangements provide a means of accommodating plural national claims. The emerging European polity is a model for a post‐sovereign order in which legal pluralism and constitutional diversity can accommodate multiple nationality claims.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.001.0001
- Subject:
- Law, Philosophy of Law
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit ...
More
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.Less
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.
Keith Culver and Michael Giudice
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.001.0001
- Subject:
- Law, Philosophy of Law
Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new ...
More
Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new law-like phenomena. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches that presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality is characterized in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union.Less
Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new law-like phenomena. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches that presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality is characterized in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union.
Anver M. Emon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579006
- eISBN:
- 9780191722639
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579006.001.0001
- Subject:
- Law, Philosophy of Law, Legal History
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of ...
More
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the ninth and tenth centuries C.E. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what is established by source texts endowed with divine authority. This book shows, however, that premodern Sunni Muslim jurists were not so resolute. They asked whether and how reason alone can be the basis for asserting the good and the bad, and thereby obligations and prohibitions of the Shari'a. They theorized about the authority of reason amidst competing theologies of God. For these jurists, nature became the link between the divine will and human reason. Nature is the product of God's creative power. Nature is created by God and reflects his goodness; consequently nature is fused with both fact and value. As a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good to be pursued. By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform.Less
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the ninth and tenth centuries C.E. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what is established by source texts endowed with divine authority. This book shows, however, that premodern Sunni Muslim jurists were not so resolute. They asked whether and how reason alone can be the basis for asserting the good and the bad, and thereby obligations and prohibitions of the Shari'a. They theorized about the authority of reason amidst competing theologies of God. For these jurists, nature became the link between the divine will and human reason. Nature is the product of God's creative power. Nature is created by God and reflects his goodness; consequently nature is fused with both fact and value. As a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good to be pursued. By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform.
Saskia Lettmaier
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199569977
- eISBN:
- 9780191722066
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569977.001.0001
- Subject:
- Law, Legal History
While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their ...
More
While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their subsequent fall from favour. This monograph ties the story of the action's rise and fall between 1800 and 1940 to changes in the prevalent conception of woman, her ideal role in society, sexual relations, and the family, arguing that the idiosyncratic nineteenth-century breach-of-promise suit (a luxuriant blend of both contract and tort) and Victorian notions of ideal femininity were uneasily and fatally, but nonetheless inextricably, entwined. It classifies the ninteenth-century breach-of-promise action as a ‘codification’ of the contemporaneous ideal of true womanhood and explores the longer-term implications of this infusion of mythologized femininity for the law, in particular for the position of plaintiffs. Surveying three consecutive time periods – the early nineteenth century, the high Victorian, and the post-Victorian periods – and adopting an interdisciplinary approach that combines the perspectives of legal history, social history, and literary analysis, it argues that the feminizing process, by shaping a cause of action in accordance with an ideal at odds with the very notion of women going to law, imported a fatal structural inconsistency that at first remained obscured, but ultimately vulgarized and undid the cause of action. Alongside more than two hundred and fifty real-life breach-of-promise cases, the book examines literary and cinematic renditions of the breach-of-promise theme, by artists ranging from Charles Dickens to P. G. Wodehouse, in order to expose the subtle yet unmistakable ways in which what happened (and what changed) in the breach-of-promise courtroom influenced the changing representation of the breach-of-promise plaintiff in nineteenth- and early twentieth-century literature and film.Less
While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their subsequent fall from favour. This monograph ties the story of the action's rise and fall between 1800 and 1940 to changes in the prevalent conception of woman, her ideal role in society, sexual relations, and the family, arguing that the idiosyncratic nineteenth-century breach-of-promise suit (a luxuriant blend of both contract and tort) and Victorian notions of ideal femininity were uneasily and fatally, but nonetheless inextricably, entwined. It classifies the ninteenth-century breach-of-promise action as a ‘codification’ of the contemporaneous ideal of true womanhood and explores the longer-term implications of this infusion of mythologized femininity for the law, in particular for the position of plaintiffs. Surveying three consecutive time periods – the early nineteenth century, the high Victorian, and the post-Victorian periods – and adopting an interdisciplinary approach that combines the perspectives of legal history, social history, and literary analysis, it argues that the feminizing process, by shaping a cause of action in accordance with an ideal at odds with the very notion of women going to law, imported a fatal structural inconsistency that at first remained obscured, but ultimately vulgarized and undid the cause of action. Alongside more than two hundred and fifty real-life breach-of-promise cases, the book examines literary and cinematic renditions of the breach-of-promise theme, by artists ranging from Charles Dickens to P. G. Wodehouse, in order to expose the subtle yet unmistakable ways in which what happened (and what changed) in the breach-of-promise courtroom influenced the changing representation of the breach-of-promise plaintiff in nineteenth- and early twentieth-century literature and film.
Gregory S. Alexander and Eduardo M. Peñalver (eds)
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780195391572
- eISBN:
- 9780199775804
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195391572.001.0001
- Subject:
- Law, Environmental and Energy Law
The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Across a broad range of property thought — ...
More
The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Across a broad range of property thought — from utilitarian to Lockean to Hegelian — scholars have expended enormous effort explaining what owners can do with their property and the extent to which the community or the state can participate in those decisions. Discussions of property rights, from whatever perspective, necessarily reflect ideas about the proper domain and limits of individual and community power. Property stands so squarely at the intersection between the individual and community because systems of property are always the creation of some community. Moreover, systems of property have as their subject matter the allocation among community members of rights and duties with respect to resources that human beings need in order to survive and flourish. These allocative decisions are crucially important both to individuals, owners and non-owners alike, and to the community as a whole. In other words, whenever we discuss property, we are unavoidably discussing the architecture of community and of the individual's place within it. Even though the relationship between individuals and community stands at the conceptual center of property theory, the normative theories of community underlying discussions of property are frequently left implicit. This book aims to remedy this deficiency. With essays by property theorists from five different countries, it addresses various facets of the intersection between property and community.Less
The relationship between individuals and communities — all manner of communities, but especially the state — is a central preoccupation of property theory. Across a broad range of property thought — from utilitarian to Lockean to Hegelian — scholars have expended enormous effort explaining what owners can do with their property and the extent to which the community or the state can participate in those decisions. Discussions of property rights, from whatever perspective, necessarily reflect ideas about the proper domain and limits of individual and community power. Property stands so squarely at the intersection between the individual and community because systems of property are always the creation of some community. Moreover, systems of property have as their subject matter the allocation among community members of rights and duties with respect to resources that human beings need in order to survive and flourish. These allocative decisions are crucially important both to individuals, owners and non-owners alike, and to the community as a whole. In other words, whenever we discuss property, we are unavoidably discussing the architecture of community and of the individual's place within it. Even though the relationship between individuals and community stands at the conceptual center of property theory, the normative theories of community underlying discussions of property are frequently left implicit. This book aims to remedy this deficiency. With essays by property theorists from five different countries, it addresses various facets of the intersection between property and community.
William Cornish, Michael Lobban, and Keith Smith
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0001
- Subject:
- Law, Legal History
This introductory chapter presents an overview of the chapters in this part of the book. Chapter II begins by outlining the 19th-century frame of government and law. It then turns to issues of what ...
More
This introductory chapter presents an overview of the chapters in this part of the book. Chapter II begins by outlining the 19th-century frame of government and law. It then turns to issues of what could be identified as law, starting from inherited beliefs about the sources of English law in Chapter III; and Chapter IV, on theories of law and government, deals with the drive to distinguish law clearly from other moral structures. Finally, Chapters VII-IX turn outward, to the place of Britain and its vaunted Empire in relation to other nation states.Less
This introductory chapter presents an overview of the chapters in this part of the book. Chapter II begins by outlining the 19th-century frame of government and law. It then turns to issues of what could be identified as law, starting from inherited beliefs about the sources of English law in Chapter III; and Chapter IV, on theories of law and government, deals with the drive to distinguish law clearly from other moral structures. Finally, Chapters VII-IX turn outward, to the place of Britain and its vaunted Empire in relation to other nation states.
Patrick Polden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0016
- Subject:
- Law, Legal History
This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior ...
More
This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior courts of law had deserted Westminster Hall for a splendid edifice in the Strand; two of the three historic courts of common law — the Common Pleas and Exchequer — had passed into history, while the King's Bench, had been relegated to the status of a mere division in a new entity, a ‘Supreme Court of Judicature’ (SCJ). Below the level of the SCJ the changes were, at least on the civil side, more drastic, though criminal justice continued to be dispensed chiefly by the lay justices of the peace, either in quarter or petty sessions; stipendiary magistrates, already known in 1814, were to be found only in a few places outside London. Country courts were something new, products of mid-century legislation and named after the ancient county courts in order to provide a spurious pedigree.Less
This chapter shows that by the late 19th century changes in structures of the law would seem more notable for what had been preserved than for what had been replaced or transformed. The superior courts of law had deserted Westminster Hall for a splendid edifice in the Strand; two of the three historic courts of common law — the Common Pleas and Exchequer — had passed into history, while the King's Bench, had been relegated to the status of a mere division in a new entity, a ‘Supreme Court of Judicature’ (SCJ). Below the level of the SCJ the changes were, at least on the civil side, more drastic, though criminal justice continued to be dispensed chiefly by the lay justices of the peace, either in quarter or petty sessions; stipendiary magistrates, already known in 1814, were to be found only in a few places outside London. Country courts were something new, products of mid-century legislation and named after the ancient county courts in order to provide a spurious pedigree.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0006
- Subject:
- Law, Philosophy of Law
This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial ...
More
This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial Contracts, are no modern peculiarity. On the contrary: European private law has long been developed on the basis of texts that were largely independent of any political domination. This becomes apparent from the transjurisdictional character of most non-legislative codifications. Thus, private law has mostly been, and still is to a large degree, autonomous from the states' political system.Less
This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial Contracts, are no modern peculiarity. On the contrary: European private law has long been developed on the basis of texts that were largely independent of any political domination. This becomes apparent from the transjurisdictional character of most non-legislative codifications. Thus, private law has mostly been, and still is to a large degree, autonomous from the states' political system.
David E. Klein and Gregory Mitchell (eds)
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195367584
- eISBN:
- 9780199776917
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367584.001.0001
- Subject:
- Psychology, Forensic Psychology
This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make ...
More
This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make many of the same judgments and decisions that ordinary people make and consider how our knowledge about judgment and decision-making in general applies to the case of legal judges. Chapters in the second section focus on the specific tasks that judges perform within a unique social setting and examine the expertise and particular modes of reasoning that judges develop to deal with their tasks in this unique setting. Chapters in the third section raise questions about whether and how we can evaluate judicial performance, with implications for the possibility of improving judging through the selection and training of judges and structuring of judicial institutions. Together the essays apply a wide range of psychological insights to help us better understand how judges make decisions and to open new avenues of inquiry into the influences on judicial behavior.Less
This volume of essays examines the psychological processes that underlie judicial decision making. Chapters in the first section of the book take as their starting point the fact that judges make many of the same judgments and decisions that ordinary people make and consider how our knowledge about judgment and decision-making in general applies to the case of legal judges. Chapters in the second section focus on the specific tasks that judges perform within a unique social setting and examine the expertise and particular modes of reasoning that judges develop to deal with their tasks in this unique setting. Chapters in the third section raise questions about whether and how we can evaluate judicial performance, with implications for the possibility of improving judging through the selection and training of judges and structuring of judicial institutions. Together the essays apply a wide range of psychological insights to help us better understand how judges make decisions and to open new avenues of inquiry into the influences on judicial behavior.
Donald Maurice
- Published in print:
- 2004
- Published Online:
- May 2008
- ISBN:
- 9780195156904
- eISBN:
- 9780199868339
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195156904.003.0001
- Subject:
- Music, History, Western
This introductory chapter highlights the special problems associated with this work including the inaccessibility of the manuscript for five decades, the incompleteness of the sketches, and the ...
More
This introductory chapter highlights the special problems associated with this work including the inaccessibility of the manuscript for five decades, the incompleteness of the sketches, and the challenges of authenticity and legal issues faced by revisionists. It concludes with a summary of the book's chapters.Less
This introductory chapter highlights the special problems associated with this work including the inaccessibility of the manuscript for five decades, the incompleteness of the sketches, and the challenges of authenticity and legal issues faced by revisionists. It concludes with a summary of the book's chapters.
Brian Bornstein and Monica Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.001.0001
- Subject:
- Psychology, Forensic Psychology
The phrase “God in the courtroom” conjures up several images, such as William Jennings Bryan defending religion against the tyranny of evolution, a robed deity passing divine judgment, a witness ...
More
The phrase “God in the courtroom” conjures up several images, such as William Jennings Bryan defending religion against the tyranny of evolution, a robed deity passing divine judgment, a witness swearing to tell “the truth, the whole truth, and nothing but the truth, so help me God,” and so on. But there are numerous other, often subtle ways in which religion and law intersect. This book reviews legal developments and behavioral science research concerning the effects of religion on legal practice, decision making processes of various legal actors, and trial outcomes. For example, religious beliefs might influence the decisions of legal decision makers, such as judges and jurors. Attorneys might rely on religion, both in the way they approach their professional practice generally and in specific trial tactics (e.g., using a scriptural rationale in arguing for a particular trial outcome). This book covers these and related topics in exploring how religion affects the actions of all of the major participants at trial: jurors, judges, attorneys, and litigants.Less
The phrase “God in the courtroom” conjures up several images, such as William Jennings Bryan defending religion against the tyranny of evolution, a robed deity passing divine judgment, a witness swearing to tell “the truth, the whole truth, and nothing but the truth, so help me God,” and so on. But there are numerous other, often subtle ways in which religion and law intersect. This book reviews legal developments and behavioral science research concerning the effects of religion on legal practice, decision making processes of various legal actors, and trial outcomes. For example, religious beliefs might influence the decisions of legal decision makers, such as judges and jurors. Attorneys might rely on religion, both in the way they approach their professional practice generally and in specific trial tactics (e.g., using a scriptural rationale in arguing for a particular trial outcome). This book covers these and related topics in exploring how religion affects the actions of all of the major participants at trial: jurors, judges, attorneys, and litigants.
Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.001.0001
- Subject:
- Law, Public International Law, EU Law
This book presents a conceptual framework for analysing the definitions of State aid and subsidy in EC and WTO law. This is done through a comparative analysis, examining the coherence of the ...
More
This book presents a conceptual framework for analysing the definitions of State aid and subsidy in EC and WTO law. This is done through a comparative analysis, examining the coherence of the conceptual understanding of the crucial, but still elusive, issue of the definition of subsidy. The first, important finding is that the topic is not only technical but raises more fundamental questions about the objectives of subsidy control in a given legal system and, more radically, about the goals of that system itself. The analysis does not only concentrate on the state of the law but critically looks forward, offering suggestions for new interpretations and law reform. The book focuses on the substantive provisions of the EC and WTO relating to what are identified by the author as the core properties of a notion of subsidy, i.e., a form of public action, the grant of an economic advantage and the ensuing impact on the competitive process. The current regulation in EC and WTO law is analysed, compared, and assessed in depth, and tested against a baseline represented by a notion of subsidy inserted in a subsidy regulation pursuing certain objectives. Drawing on the results of the comparative exercise, the book argues that both systems can learn valuable lessons from each other to achieve a greater coherence and a more efficient regulatory system.Less
This book presents a conceptual framework for analysing the definitions of State aid and subsidy in EC and WTO law. This is done through a comparative analysis, examining the coherence of the conceptual understanding of the crucial, but still elusive, issue of the definition of subsidy. The first, important finding is that the topic is not only technical but raises more fundamental questions about the objectives of subsidy control in a given legal system and, more radically, about the goals of that system itself. The analysis does not only concentrate on the state of the law but critically looks forward, offering suggestions for new interpretations and law reform. The book focuses on the substantive provisions of the EC and WTO relating to what are identified by the author as the core properties of a notion of subsidy, i.e., a form of public action, the grant of an economic advantage and the ensuing impact on the competitive process. The current regulation in EC and WTO law is analysed, compared, and assessed in depth, and tested against a baseline represented by a notion of subsidy inserted in a subsidy regulation pursuing certain objectives. Drawing on the results of the comparative exercise, the book argues that both systems can learn valuable lessons from each other to achieve a greater coherence and a more efficient regulatory system.
Malcolm Ross and Yuri Borgmann-Prebil (eds)
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199583188
- eISBN:
- 9780191594502
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199583188.001.0001
- Subject:
- Law, Constitutional and Administrative Law, EU Law
The European Commission has claimed that ‘Solidarity is part of how European society works...’ . But how are we to understand solidarity and what are its implications to government policy? This book ...
More
The European Commission has claimed that ‘Solidarity is part of how European society works...’ . But how are we to understand solidarity and what are its implications to government policy? This book addresses the question of what solidarity might mean today and its relevance to the purposes of the European Union and the way it functions. Is solidarity just a slogan or can it have meaningful legal and policy content? Contributions from leading scholars in law, politics, and sociology are brought together in this book to discuss an idea that is coming under fresh scrutiny at a time when the EU's direction following the implementation of the Lisbon Treaty is hotly debated. The book engages with both the content and limitations of solidarity as a concept in political and legal debate, and its application to specific fields such as migration, education, and pension policies. The book provides a provocative analysis of the power and potential of solidarity, applying a sceptical and rigorous assessment of the conditions necessary for it to make a difference to the European political and legal space at a time when traditional manifestations of national solidarity (e.g., in health care) are perceived to be under threat from EU market liberalization policies. A number of chapters consider whether an EU concept of solidarity is possible and how that might affect the balance between market and social priorities for the Union's future.Less
The European Commission has claimed that ‘Solidarity is part of how European society works...’ . But how are we to understand solidarity and what are its implications to government policy? This book addresses the question of what solidarity might mean today and its relevance to the purposes of the European Union and the way it functions. Is solidarity just a slogan or can it have meaningful legal and policy content? Contributions from leading scholars in law, politics, and sociology are brought together in this book to discuss an idea that is coming under fresh scrutiny at a time when the EU's direction following the implementation of the Lisbon Treaty is hotly debated. The book engages with both the content and limitations of solidarity as a concept in political and legal debate, and its application to specific fields such as migration, education, and pension policies. The book provides a provocative analysis of the power and potential of solidarity, applying a sceptical and rigorous assessment of the conditions necessary for it to make a difference to the European political and legal space at a time when traditional manifestations of national solidarity (e.g., in health care) are perceived to be under threat from EU market liberalization policies. A number of chapters consider whether an EU concept of solidarity is possible and how that might affect the balance between market and social priorities for the Union's future.
Michelle L. Meloy and Susan L. Miller
- Published in print:
- 2010
- Published Online:
- May 2012
- ISBN:
- 9780199765102
- eISBN:
- 9780199944187
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199765102.001.0001
- Subject:
- Sociology, Law, Crime and Deviance
This book presents a balanced and comprehensive summary of the most significant research on the victimizations, violence, and victim politics that disproportionately affect women. The chapters ...
More
This book presents a balanced and comprehensive summary of the most significant research on the victimizations, violence, and victim politics that disproportionately affect women. The chapters examine the history of violence against women, the surrounding debates, the legal reforms, the related media and social-service responses, and the current science on intimate-partner violence, stalking, sexual harassment, sexual assault, and rape. They augment these victimization findings with original research on women convicted of domestic battery and men convicted of sexual abuse and other sex-related offenses. In these new data, the chapters explore the unanticipated consequences associated with changes to the laws governing domestic violence and the newer forms of sex-offender legislation. Based on qualitative data involving in-depth, offender-based interviews, and analyzing the circumstances surrounding arrests, victimizations, and experiences with the criminal justice system, the book makes great strides forward in understanding and ultimately combating violence against women.Less
This book presents a balanced and comprehensive summary of the most significant research on the victimizations, violence, and victim politics that disproportionately affect women. The chapters examine the history of violence against women, the surrounding debates, the legal reforms, the related media and social-service responses, and the current science on intimate-partner violence, stalking, sexual harassment, sexual assault, and rape. They augment these victimization findings with original research on women convicted of domestic battery and men convicted of sexual abuse and other sex-related offenses. In these new data, the chapters explore the unanticipated consequences associated with changes to the laws governing domestic violence and the newer forms of sex-offender legislation. Based on qualitative data involving in-depth, offender-based interviews, and analyzing the circumstances surrounding arrests, victimizations, and experiences with the criminal justice system, the book makes great strides forward in understanding and ultimately combating violence against women.
Robin Feldman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195368581
- eISBN:
- 9780199867455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368581.003.0009
- Subject:
- Law, Criminal Law and Criminology
This chapter presents some concluding thoughts from the author. It argues that perpetual forays to find better law through science are incapable of solving law's frustrations, but they do create ...
More
This chapter presents some concluding thoughts from the author. It argues that perpetual forays to find better law through science are incapable of solving law's frustrations, but they do create distortions in the legal realm. When the legal system relies on science for crafting rules, those rules lack the flexibility and dexterity necessary for effective participation in the process of legal evolution. Moreover, relying on science creates the illusion of reasonable resolution and masks a failure to resolve the issues at hand or to take responsibility for the decisions we have made. However, if we can adjust our vision of both law and science, we may be able to recognize that law has no need of rescue and that science can never be a knight in shining armor. Law's answers, as imperfect as they are, must be developed within law itself.Less
This chapter presents some concluding thoughts from the author. It argues that perpetual forays to find better law through science are incapable of solving law's frustrations, but they do create distortions in the legal realm. When the legal system relies on science for crafting rules, those rules lack the flexibility and dexterity necessary for effective participation in the process of legal evolution. Moreover, relying on science creates the illusion of reasonable resolution and masks a failure to resolve the issues at hand or to take responsibility for the decisions we have made. However, if we can adjust our vision of both law and science, we may be able to recognize that law has no need of rescue and that science can never be a knight in shining armor. Law's answers, as imperfect as they are, must be developed within law itself.
Nick Barber
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199585014
- eISBN:
- 9780191595318
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585014.001.0001
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
This book provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory, and ...
More
This book provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory, and institutions bound together by rules. The institutions of the state make a distinctive and characteristic claim over the people of the state, who, in turn, have a distinctive and characteristic relationship with these institutions. This account reveals the importance of at least two forms of pluralism — legal and constitutional. It also casts light on some of the more difficult questions faced by writers on constitutions — such as the possibility of states undertaking actions and forming intentions, the moral significance of these actions for the people of the state, and the capacity of the state to carry responsibility for acts between generations.Less
This book provides an original analytical account of the state and its associated constitutional phenomena. It presents the state as a form of social group, consisting of people, territory, and institutions bound together by rules. The institutions of the state make a distinctive and characteristic claim over the people of the state, who, in turn, have a distinctive and characteristic relationship with these institutions. This account reveals the importance of at least two forms of pluralism — legal and constitutional. It also casts light on some of the more difficult questions faced by writers on constitutions — such as the possibility of states undertaking actions and forming intentions, the moral significance of these actions for the people of the state, and the capacity of the state to carry responsibility for acts between generations.
Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546220
- eISBN:
- 9780191720000
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546220.003.0020
- Subject:
- Law, Public International Law
Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, ...
More
Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examined the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals. Effectiveness in interpretation serves the more general principle of completeness, determinacy and effectiveness of legal regulation. The methods of interpretation are aimed at preserving the original consent, will, and intention behind the relevant legal instruments and thus at ensuring the determinacy of the relevant provision by enabling its application to facts. These methods are consistently aimed at confronting claims as to the indeterminacy of treaty provisions.Less
Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examined the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals. Effectiveness in interpretation serves the more general principle of completeness, determinacy and effectiveness of legal regulation. The methods of interpretation are aimed at preserving the original consent, will, and intention behind the relevant legal instruments and thus at ensuring the determinacy of the relevant provision by enabling its application to facts. These methods are consistently aimed at confronting claims as to the indeterminacy of treaty provisions.
Gerhard Dannemann
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199533114
- eISBN:
- 9780191705526
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533114.001.0001
- Subject:
- Law, Comparative Law, Law of Obligations
This book provides a description of the German law of unjustified enrichment. It explains how German law generally allows restitution for transfers made without legal ground (rather than on the basis ...
More
This book provides a description of the German law of unjustified enrichment. It explains how German law generally allows restitution for transfers made without legal ground (rather than on the basis of individual unjust factors), an approach which the late Peter Birks proposed for English law to adopt, and which the House of Lords was careful not to rule out for the future in Deutsche Morgan Grenfell v Inland Revenue. Part I explains the workings of German unjustified enrichment law within the particular context of German contract, tort, and property law. It shows how the German general unjust enrichment clause is controlled by limiting its scope to intentional transfers, and complemented by specific grounds of unjust enrichment. This part also explains defences against and measure of enrichment claims. Part II places German law in the comparative context of three different fundamental approaches towards unjustified enrichment, shows some unexpected similarities between English and German law, and discusses whether English law could and should adopt the German approach. The book gives equal prominence to structural issues and legal doctrine on the one hand, and practical application of the law on the other. It provides leading German cases and relevant statutory provisions in English translation.Less
This book provides a description of the German law of unjustified enrichment. It explains how German law generally allows restitution for transfers made without legal ground (rather than on the basis of individual unjust factors), an approach which the late Peter Birks proposed for English law to adopt, and which the House of Lords was careful not to rule out for the future in Deutsche Morgan Grenfell v Inland Revenue. Part I explains the workings of German unjustified enrichment law within the particular context of German contract, tort, and property law. It shows how the German general unjust enrichment clause is controlled by limiting its scope to intentional transfers, and complemented by specific grounds of unjust enrichment. This part also explains defences against and measure of enrichment claims. Part II places German law in the comparative context of three different fundamental approaches towards unjustified enrichment, shows some unexpected similarities between English and German law, and discusses whether English law could and should adopt the German approach. The book gives equal prominence to structural issues and legal doctrine on the one hand, and practical application of the law on the other. It provides leading German cases and relevant statutory provisions in English translation.
