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This chapter traces the instinct to reach for science in American legal doctrine back through the 1800s. It examines both the more formal legal theory movements as well as individual doctrinal moments in which American law reaches for science in an attempt to solve its problems and is disappointed when the solution fails to live up to its promise. The chapter begins by describing various attempts to reconceptualise law as a science in the pre-Civil War period and the failure of those attempts in the wake of the Civil War. It then describes reinvigoration of the “law as science” idea in the 1870s as Christopher Langdell popularizes the notion, leaving an enduring mark on American legal education. The chapter turns to individual doctrinal moments in which American law has reached for science to solve intractable problems and is subsequently disappointed. The examples explored include criminal law doctrines related to finding a defendant not guilty by reason of insanity, civil law doctrines related to the best interests of the child in custody cases, the Supreme Court's desegregation decision in Brown v. Board of Education, the Learned Hand test for negligence liability in tort law, and rate setting in public utility regulation.

This chapter illustrates that the quest for principle in American jurisprudence ought not to be regarded merely as a response to realism. It specifically attempts to make sense of process jurisprudence. It needs to determine the emergence of another basic concept in American legal thought: the concept of principle. Henry Hart and Albert Sacks' The Legal Process is the classic text of post-war process jurisprudence. Policies may be good or bad; but principles of constitutional law ought to be neutral. The discussions on the jurisprudence of prudence and the persistence of process are offered. It also draws the evolution of process thinking in American jurisprudence. In drawing this evolution, it shows how the theme of reason has acquired near-paradigmatic status in American legal thought.

This chapter provides an overview of Max Weber's ideal-typical developmental stages of the law and of the legal process. These stages include charismatic revelation by law prophets; empirical lawmaking and lawfinding by legal honoratiores; imposition of law by the secular imperium and theocratic power; and specialist administration of justice by legally educated jurists, on the basis of scholarly and formally logical education. Here it is a question of developments which ultimately proceed in the West in the direction of rational law, if not always in a linear way, and in which Weber particularly emphasizes, if not overstates, the ‘role’ of logic. For one thing, the development of rational law can have both a material and a formal character; for another, the stage of highest rationality, where Weber's ideal-typical ‘system’ of law is to be found, has, it must be admitted, never actually been reached in history. Moreover, it is important to remember that Weber ‘did not want to write legal history’ in his ‘Sociology of Law’. Rather, his discussion of legal history always has to be read in the light of his cognitive interest, so that ‘when integrated into a sociological or theoretical system of the law, historical detail will always be a little different to what it was before’.

This introductory chapter first sets out the purpose of the book, which is to explore the role that gender plays in the construction and implementation of the post-conflict transitional process. The specific intention is to probe how women fare and to articulate the views given in this book on how various legal and political processes might work better for women. The remainder of the chapter presents some key ideas that frame the overall analysis. Section one sets out the framework utilized to address the legal and political processes that are typically harnessed to subdue conflict. Section two provides a critique of gender mainstreaming and articulates the concept of gender centrality—the application of which might be a means to recalibrate post-conflict processes to better accommodate women’s needs and interests. Section three concludes with an overview of the relevant and developing international legal norms that directly address the roles and rights of women in post-conflict political processes.

This chapter analyses the notion of participation in its legal and political contexts. First, it considers participation in legal and administrative processes. It then explores the main ideas on participation found in the literature of political theory. Finally, the social basis of participation is considered, and some of the practical issues highlighted.

This chapter is concerned with the treatment of law and legal negotiation in popular culture. It suggests that popular depictions of adversarial and competitive negotiations dangerously perpetuate the notion that legal negotiations are about winning of bettering the other side. It decentres the trial and courtroom as the central locus of where justice and legal process if depicted in popular culture and encourages creators of popular culture to take a closer look at how negotiations are evolving to solve problems.

This book focuses on the concepts of justice and fairness in relation to procedures. It provides a general framework for the understanding of procedures and procedural fairness, a framework within which different types of legal processes can be identified and where notions such as procedural rights, process values, the worth of participation, and the problems of costs can be discussed.

Adverse outcomes happen in health care, regardless of intent and quality of care provided. Patients may be harmed, or experience inadequate treatment, or be dissatisfied, causing them to seek redress through medico-legal processes against the doctor. In Australia, formal complaint mechanisms operate in all Australian states and territories, and a complaint to one of these complaint bodies is common. Patients also seek compensation as a result of medical negligence claims. A minority of patients claim for compensation when there has been no wrongful treatment or when there is found to be no cause for complaint. Bad outcomes cause distress for all concerned, not only for the patient and patient’s family, but also the doctor and doctor’s family. The medico-legal processes of complaints, claims, and inquiries that can follow can be distressing for the doctor regardless of the cause or the outcome. This chapter explores the impact the medico-legal process has on the health and well-being of the doctor and the impact on the doctor’s practice of medicine, including the way they relate to patients.

This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.

In Othello, a legal question is posed for lawyers regarding Iago: is he criminally liable for the murder of Desdemona? An extraordinary thought experiment for testing the limit of Elizabethan complicity law, Othello favorably contrasts the deliberative elements of legal process with the more arbitrary process of private vengeance. This chapter argues that while criminal law provides a frame through which to view and study Othello, the play itself also offers something in return: thought experiments for examining law—showing the virtue of legal processes by the tragedy which its absence creates. It uses criminal complicity rules to explain and understand the choices which Iago makes in the play, suggesting that a legal analysis might show how legally trained members of the original audiences interpreted the play.

One clear assertion of this book is that the present system of interrogations and detainee status requires our collective and immediate attention. To that end, the hybrid paradigm was created. Although not a perfect solution to a complicated problem, the hybrid paradigm proposes an alternative that addresses the dilemma of how to balance legitimate civil and political rights of the individual with the equally legitimate national security rights of the state. Accordingly, the detainee held by the US in Guantanamo Bay and similar facilities will be granted certain constitutional rights, in particular those based on the Fifth, Eighth, and Fourteenth Amendments. The operative words in this chapter are granting certain rights to non-Americans held by the United States outside the United States. Such an analysis facilitates an examination of whether the proposal sufficiently protects the rights of those it presumes are a constitutionally protected class.

This chapter takes issue with the procedural amendments made in the England and Wales legal system regarding how children need to be treated by the police and in court, referred to in the Memorandum of Good Practice (1992), and the subsequent replacements: Achieving Best Evidence (2002, 2004, 2007, and 2011). The primary objective of the policy changes was to enhance justice for all, without terrorizing those most vulnerable to the inquisitorial process. However, while the amendments have been successful in minimizing the terror experienced by children in the legal process, resulting in more detailed and reliable testimonies, it is also arguable that justice is still likely to be out of reach for these vulnerable witnesses, as they do not have the linguistic skills needed to utilize appropriately the invitation to ‘tell their own story’, and they don't always have the social skills necessary to comprehend what is being said to them. The chapter offers a detailed consideration of children's evidentiary experience and performance, as well as the nature and content of police questioning that also can be harmful to their case. It argues that the initial interview by the police should not be used in court as the victim's Evidence-in-Chief, because the police function of collecting evidence is not consistent with the chief prosecutor's role of putting the victim's ‘best foot forward’ in court. In effect, the current situation requires those recognized by the legal process as ‘vulnerable’ (i.e., dogs who are ‘down’) to build their own case, which even those not recognized as vulnerable would be hard pressed to do appropriately or successfully.

Shakespeare's The Winter's Tale is examined in this chapter in relation to how the play expresses the legal effects of the fundamental tension between a temporality of the instant and a temporality of extended time. Time, in the play, takes on a sovereign role, overseeing a court in the way Leontes oversees Hermoine's “trial.” When Time, in a connotation later in the chorus, is placed in the role of the accused, Time rejects the forum in which the charge makes sense simply because he has the “power” to accomplish this. The growth of the gap is left untried because trials belong to law, and Time only follows the law in so far as it suits him. This chapter discusses how the play expresses the temporalities of time by distinguishing legal process from legal decision for the purpose of suggesting the shape of sovereignty both at law and in the theatre.

This chapter sets out the two principal claims of the book. First, it supports the analysis of international law through a process-based account, specifically one tied to the notion of globalization. Acknowledging the multiple actors and jurisdictional influences on the development of WTO law in particular necessitates a means to clarify the complex interplay involved. Rejecting the use of empiricist approaches to examining law, the chapter turns to the second claim, that to understand the development of WTO law as a complex process requires the use of a pluralist causal account. The chapter concludes by reframing three common lenses for the analysis of law into causal influences, introducing the three causal categories which are the focus of Chapter 3.

The term ‘officialism’ began to be commonly used and understood in public life in the 1870s. In broad terms, it meant the conduct of affairs by the government. More precisely, it meant either the compulsory administration of private affairs by central government, or an inflexible and minute adherence to official systems and procedures, the latter also known as ‘red tapeism’. By the end of the century, it became a disparaging term for bureaucracy. This chapter examines the nature of officialism and the movement against it in selected areas of private legal activity, the reasons for its existence, and the extent to which it affected legislation in those specific instances and legislation in general. It also assesses the wider impact of the movement on legal process in the 19th century.