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 — ...
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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.
Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.001.0001
- Subject:
- Law, Public International Law, EU Law
This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The ...
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This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The relationship between WTO law and international and domestic efforts to protect the environment has moved to centre stage in WTO and international environmental law. It has also spurred the discussion on fragmentation in international law in recent years. This book analyses these issues by examining the ‘horizontal’ interaction between WTO law and ‘other’ international law, the ‘vertical’ relationship between WTO law and domestic law, and the contents of and interrelations between fundamental provisions of WTO law. This study relies on established insights from legal theory in order to achieve greater clarity in legal argumentation. The main results of this analysis are applied to two topical instances of international regime interplay, namely the relevance of WTO law for international and domestic measures protecting the earth's climate and the ozone layer. A series of controversial topics in WTO and general international law are addressed in this book such as the notion of conflicts of norms and the resolution of conflicts of norms; the role of international law in WTO proceedings; extraterritorial jurisdiction and unilateral trade measures; proportionality and balancing of interests in international and WTO law; the core disciplines of the GATT and the TBT Agreement; process and production-based measures (PPMs) in WTO law; and climate protection, protection of the ozone layer, and WTO disciplines. Less
This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The relationship between WTO law and international and domestic efforts to protect the environment has moved to centre stage in WTO and international environmental law. It has also spurred the discussion on fragmentation in international law in recent years. This book analyses these issues by examining the ‘horizontal’ interaction between WTO law and ‘other’ international law, the ‘vertical’ relationship between WTO law and domestic law, and the contents of and interrelations between fundamental provisions of WTO law. This study relies on established insights from legal theory in order to achieve greater clarity in legal argumentation. The main results of this analysis are applied to two topical instances of international regime interplay, namely the relevance of WTO law for international and domestic measures protecting the earth's climate and the ozone layer. A series of controversial topics in WTO and general international law are addressed in this book such as the notion of conflicts of norms and the resolution of conflicts of norms; the role of international law in WTO proceedings; extraterritorial jurisdiction and unilateral trade measures; proportionality and balancing of interests in international and WTO law; the core disciplines of the GATT and the TBT Agreement; process and production-based measures (PPMs) in WTO law; and climate protection, protection of the ozone layer, and WTO disciplines.
Ann E. Cudd
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780195187434
- eISBN:
- 9780199786213
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195187431.003.0007
- Subject:
- Philosophy, Political Philosophy
This chapter discusses strategies to resist oppression. It argues that resistance to oppression is possible and morally required, and demonstrates that for virtually all different forms of oppression ...
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This chapter discusses strategies to resist oppression. It argues that resistance to oppression is possible and morally required, and demonstrates that for virtually all different forms of oppression there exist potentially successful means of resistance. All resistance begins with the recognition that there are serious injustices that can be addressed, and then must proceed to mitigate or at least protest the material and psychological harms. How legal theory might take a greater account of oppression within a liberal legal system is also discussed.Less
This chapter discusses strategies to resist oppression. It argues that resistance to oppression is possible and morally required, and demonstrates that for virtually all different forms of oppression there exist potentially successful means of resistance. All resistance begins with the recognition that there are serious injustices that can be addressed, and then must proceed to mitigate or at least protest the material and psychological harms. How legal theory might take a greater account of oppression within a liberal legal system is also discussed.
Duncan Kelly
- Published in print:
- 2003
- Published Online:
- January 2012
- ISBN:
- 9780197262870
- eISBN:
- 9780191734892
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197262870.003.0003
- Subject:
- Political Science, Political Theory
This chapter examines Max Weber's rejection of an idea central to nineteenth-century Staatsrechtslehre. This is the notion that the state itself is a ‘personality’. After outlining some of the main ...
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This chapter examines Max Weber's rejection of an idea central to nineteenth-century Staatsrechtslehre. This is the notion that the state itself is a ‘personality’. After outlining some of the main tenets of this tradition, the chapter seeks to show how Weber, borrowing from the work of Georg Jellinek in particular, retains a conceptual understanding of the state that stresses its position at the apex of political life. He nevertheless rejected the formalism of Jellinek's modified legal-positivist argument, which had resulted in his famous two-sided (one legal, the other political-sociological) account of the state. Weber insisted that the state could only be properly discussed as a relationship of domination, and in an empirical-sociological and comparative manner at that.Less
This chapter examines Max Weber's rejection of an idea central to nineteenth-century Staatsrechtslehre. This is the notion that the state itself is a ‘personality’. After outlining some of the main tenets of this tradition, the chapter seeks to show how Weber, borrowing from the work of Georg Jellinek in particular, retains a conceptual understanding of the state that stresses its position at the apex of political life. He nevertheless rejected the formalism of Jellinek's modified legal-positivist argument, which had resulted in his famous two-sided (one legal, the other political-sociological) account of the state. Weber insisted that the state could only be properly discussed as a relationship of domination, and in an empirical-sociological and comparative manner at that.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.001.0001
- Subject:
- Law, Philosophy of Law
This book explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the ...
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This book explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the complementary philosophy of a Dewey-inspired pragmatism. This is followed by an examination from a pragmatic perspective of the dominant theories of analytical jurisprudence in both their positivist and naturalist forms. The book emphasizes the contested concepts of “truth”, “facts”, and “law/morality relation” and explores what a more uncompromising democratic/pragmatic agenda for law and legal theory would entail. The author's intent is to contribute to the shift away from a technical and elite philosophical approach to jurisprudence to a more democratic engagement. It advances and follows through on the critical claim that there is no position of theoretical or political innocence. Like the law it seeks to illuminate, legal theory must recognize its own political and social setting as well as its own responsibilities. Moreover, whatever else democracy might entail or imply, it opposes elite rule whether by autocrats, functionaries or theorists, however enlightened or principled their proposals or interventions may be: authority must come from below, not above.Less
This book explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the complementary philosophy of a Dewey-inspired pragmatism. This is followed by an examination from a pragmatic perspective of the dominant theories of analytical jurisprudence in both their positivist and naturalist forms. The book emphasizes the contested concepts of “truth”, “facts”, and “law/morality relation” and explores what a more uncompromising democratic/pragmatic agenda for law and legal theory would entail. The author's intent is to contribute to the shift away from a technical and elite philosophical approach to jurisprudence to a more democratic engagement. It advances and follows through on the critical claim that there is no position of theoretical or political innocence. Like the law it seeks to illuminate, legal theory must recognize its own political and social setting as well as its own responsibilities. Moreover, whatever else democracy might entail or imply, it opposes elite rule whether by autocrats, functionaries or theorists, however enlightened or principled their proposals or interventions may be: authority must come from below, not above.
Rumee Ahmed
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199640171
- eISBN:
- 9780191738074
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199640171.001.0001
- Subject:
- Law, Philosophy of Law
In the critical period when Islamic law first developed, a new breed of jurists developed a genre of legal theory treatises to explore how the fundamental moral teachings of Islam might operate as a ...
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In the critical period when Islamic law first developed, a new breed of jurists developed a genre of legal theory treatises to explore how the fundamental moral teachings of Islam might operate as a legal system. Seemingly rhetorical and formulaic, these manuals have long been overlooked despite the insights they offer into the early formation of Islamic conceptions of law and its role in social life. This book responds to the prevailing misconceptions about the purpose and form of the Islamic legal treatise by describing how Muslim jurists used the genre of legal theory to argue for individualized, highly creative narratives about the application of Islamic law while demonstrating loyalty to inherited principles and general prohibitions. These narratives are revealed through careful attention to the nuanced way in which legal theorists defined terms and concepts particular to the legal theory genre, and disclose multiple worlds in which Islamic law should ideally function. The text takes the reader into the logic of Islamic legal theory to uncover diverse conceptions of law and legal application in the Islamic tradition, clarifying and making accessible the sometimes obscure legal theories of central figures in the history of Islamic law. The book offers important insights about the ways in which legal philosophy and theology mutually influenced premodern jurists as they formulated their respective visions of law, ethics, and theology.Less
In the critical period when Islamic law first developed, a new breed of jurists developed a genre of legal theory treatises to explore how the fundamental moral teachings of Islam might operate as a legal system. Seemingly rhetorical and formulaic, these manuals have long been overlooked despite the insights they offer into the early formation of Islamic conceptions of law and its role in social life. This book responds to the prevailing misconceptions about the purpose and form of the Islamic legal treatise by describing how Muslim jurists used the genre of legal theory to argue for individualized, highly creative narratives about the application of Islamic law while demonstrating loyalty to inherited principles and general prohibitions. These narratives are revealed through careful attention to the nuanced way in which legal theorists defined terms and concepts particular to the legal theory genre, and disclose multiple worlds in which Islamic law should ideally function. The text takes the reader into the logic of Islamic legal theory to uncover diverse conceptions of law and legal application in the Islamic tradition, clarifying and making accessible the sometimes obscure legal theories of central figures in the history of Islamic law. The book offers important insights about the ways in which legal philosophy and theology mutually influenced premodern jurists as they formulated their respective visions of law, ethics, and theology.
Karma Nabulsi
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294078
- eISBN:
- 9780191599972
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294077.003.0004
- Subject:
- Political Science, International Relations and Politics
This is the third of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed, and ...
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This is the third of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed, and explores a range of intellectual approaches to the laws of war and war itself, assessing their relative methodological value and limitations. Previous chapters have illustrated that there existed at all levels a profound disagreement about the classes of people who were permitted to engage in political violence in times of war, and by narrowing the scope of inquiry to this one aspect (lawful versus unlawful combatants) of the laws of war, these chapters have also shown that there were strong normative elements to this lack of accord. Starting with this chapter, the remainder of the book argues that these normative elements were expressions of profound ideological clashes among three contending philosophies of war: martial, Grotian, and republican. From a methodological perspective, the explanation for the failed attempt to construct a distinction between lawful and unlawful combatants will be seen to lie in incommensurable normative frameworks of war, rather than in the specialized analytical tools of legal theory, diplomatic and archival history, and international relations theory. This chapter first assesses both the intellectual contributions and limitations of the legal, historical and international relations approaches before defining the three distinct traditions of war (martial, Grotian, and republican), and highlighting their explanatory value.Less
This is the third of three chapters that set out the differing contexts through which the dilemma in the laws of war over the distinction between lawful and unlawful combatants can be viewed, and explores a range of intellectual approaches to the laws of war and war itself, assessing their relative methodological value and limitations. Previous chapters have illustrated that there existed at all levels a profound disagreement about the classes of people who were permitted to engage in political violence in times of war, and by narrowing the scope of inquiry to this one aspect (lawful versus unlawful combatants) of the laws of war, these chapters have also shown that there were strong normative elements to this lack of accord. Starting with this chapter, the remainder of the book argues that these normative elements were expressions of profound ideological clashes among three contending philosophies of war: martial, Grotian, and republican. From a methodological perspective, the explanation for the failed attempt to construct a distinction between lawful and unlawful combatants will be seen to lie in incommensurable normative frameworks of war, rather than in the specialized analytical tools of legal theory, diplomatic and archival history, and international relations theory. This chapter first assesses both the intellectual contributions and limitations of the legal, historical and international relations approaches before defining the three distinct traditions of war (martial, Grotian, and republican), and highlighting their explanatory value.
Samantha Besson and José Luis Martí
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199559169
- eISBN:
- 9780191720956
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559169.003.0001
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
This introductory chapter discusses some of the fundamental theoretical principles underlying republicanism in general, and legal republicanism in particular. The goal is to set a research agenda for ...
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This introductory chapter discusses some of the fundamental theoretical principles underlying republicanism in general, and legal republicanism in particular. The goal is to set a research agenda for the years to come through a survey of the main issues raised by legal republicanism. The chapter identifies central issues that constitute the focal point of most disagreements internal to the republican tradition.Less
This introductory chapter discusses some of the fundamental theoretical principles underlying republicanism in general, and legal republicanism in particular. The goal is to set a research agenda for the years to come through a survey of the main issues raised by legal republicanism. The chapter identifies central issues that constitute the focal point of most disagreements internal to the republican tradition.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.001.0001
- Subject:
- Law, Philosophy of Law
This book provides a theoretical and sociological exploration of the relationship between law and society. Law is generally understood to be a mirror of society — a reflection of its customs and ...
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This book provides a theoretical and sociological exploration of the relationship between law and society. Law is generally understood to be a mirror of society — a reflection of its customs and morals — that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society. It then engages in a theoretical and empirical critique of this common understanding. The theoretical critique exposes the mythical quality of the two most often repeated theories about the emergence of law, the evolutionary theory and the social contract theory. It also discusses a fundamental shift, resulting from Enlightenment ideas about reason and morality, in the theoretical understanding of the relationship between morality and law. The empirical critique covers various subjects, primarily including the impact of legal transplantation and globalisation. The book then constructs an alternative universally applicable framework with which to understand the relationship between law and society. The core component to this framework is a non-essentialist approach to the concept of law, which provides a basis for understanding of the phenomenon of legal pluralism. Finally, the book articulates how this framework would operate in facilitating our ability to study, understand, and criticise the relationship between law and society in a variety of contexts around the world today. In addition to illuminating the relationship between law and society, a key aspect of the argument of this book is to construct an approach to law that integrates legal theory with sociological approaches to law.Less
This book provides a theoretical and sociological exploration of the relationship between law and society. Law is generally understood to be a mirror of society — a reflection of its customs and morals — that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society. It then engages in a theoretical and empirical critique of this common understanding. The theoretical critique exposes the mythical quality of the two most often repeated theories about the emergence of law, the evolutionary theory and the social contract theory. It also discusses a fundamental shift, resulting from Enlightenment ideas about reason and morality, in the theoretical understanding of the relationship between morality and law. The empirical critique covers various subjects, primarily including the impact of legal transplantation and globalisation. The book then constructs an alternative universally applicable framework with which to understand the relationship between law and society. The core component to this framework is a non-essentialist approach to the concept of law, which provides a basis for understanding of the phenomenon of legal pluralism. Finally, the book articulates how this framework would operate in facilitating our ability to study, understand, and criticise the relationship between law and society in a variety of contexts around the world today. In addition to illuminating the relationship between law and society, a key aspect of the argument of this book is to construct an approach to law that integrates legal theory with sociological approaches to law.
David Lyons
- Published in print:
- 1991
- Published Online:
- October 2011
- ISBN:
- 9780198239642
- eISBN:
- 9780191679971
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198239642.001.0001
- Subject:
- Philosophy, Political Philosophy, History of Philosophy
Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read, but often caricatured. This book, based on a study of Bentham's ...
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Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read, but often caricatured. This book, based on a study of Bentham's most important works, offers a reinterpretation of Bentham's main philosophical doctrines, his principle of utility and his analysis of law. The evidence indicates that Bentham was no ‘universalist’ in morals, but embraced a dual standard—in politics the community's interest, in ‘private ethics’ the agent's interest—which may in turn be based on the idea that government should serve the interests of those who are ‘governed’. The argument challenges many common assumptions about Bentham's view of human nature and of political institutions. A new reading is also given to his theory of law, which suggests Bentham's insight, originality, and continued interest for philosophers and legal theorists. This book was first published in 1973. This revised edition contains a new preface, a revised bibliography, and two new indexes, one of names and one of subjects, which together replace the original index.Less
Although known as the founder of modern utilitarianism and the source of analytical jurisprudence, Bentham today is infrequently read, but often caricatured. This book, based on a study of Bentham's most important works, offers a reinterpretation of Bentham's main philosophical doctrines, his principle of utility and his analysis of law. The evidence indicates that Bentham was no ‘universalist’ in morals, but embraced a dual standard—in politics the community's interest, in ‘private ethics’ the agent's interest—which may in turn be based on the idea that government should serve the interests of those who are ‘governed’. The argument challenges many common assumptions about Bentham's view of human nature and of political institutions. A new reading is also given to his theory of law, which suggests Bentham's insight, originality, and continued interest for philosophers and legal theorists. This book was first published in 1973. This revised edition contains a new preface, a revised bibliography, and two new indexes, one of names and one of subjects, which together replace the original index.
Alan Norrie
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198259565
- eISBN:
- 9780191710636
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198259565.001.0001
- Subject:
- Law, Comparative Law, Philosophy of Law
This book builds upon previous work in the philosophy of punishment and criminal law to develop a critique of Kantian justice thinking. It casts a new light on recent debates about punishment and the ...
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This book builds upon previous work in the philosophy of punishment and criminal law to develop a critique of Kantian justice thinking. It casts a new light on recent debates about punishment and the criminal law in a period when traditional thinking has undergone opposition, crisis, and change. The retributive and ‘orthodox subjectivist’ approaches, which have driven the textbook tradition and law reform for forty years, are challenged. A revisionist critique opposes their Kantian insistence on formal individual autonomy from both a communitarian position on punishment and a morally substantive view of responsibility. A postmodern critique opposes orthodoxy for its failure to see how the Kantian subject is constructed in relations of power and domination. Against both orthodox subjectivist and revisionist views, this book develops a relational or dialectical critique to argue that they in fact both work in the same Kantian problematic. It establishes the concept of a ‘blaming relation’ as the basis for a critique of both, and to challenge the standard analytical account of criminal justice thinking. Moving from the legal theory of Andrew Ashworth, Antony Duff, George Fletcher, Michael Moore, and others to the jurisprudence of the courts, this book analyses the seemingly irresolvable problems of punishment, responsibility, and justice in the criminal law from a relational point of view. Against the postmodern approach, the book argues for the need to retain what remains of moral value in Kantianism by seeking ‘a non-Kantian answer to the Kantian question’ of individual justice.Less
This book builds upon previous work in the philosophy of punishment and criminal law to develop a critique of Kantian justice thinking. It casts a new light on recent debates about punishment and the criminal law in a period when traditional thinking has undergone opposition, crisis, and change. The retributive and ‘orthodox subjectivist’ approaches, which have driven the textbook tradition and law reform for forty years, are challenged. A revisionist critique opposes their Kantian insistence on formal individual autonomy from both a communitarian position on punishment and a morally substantive view of responsibility. A postmodern critique opposes orthodoxy for its failure to see how the Kantian subject is constructed in relations of power and domination. Against both orthodox subjectivist and revisionist views, this book develops a relational or dialectical critique to argue that they in fact both work in the same Kantian problematic. It establishes the concept of a ‘blaming relation’ as the basis for a critique of both, and to challenge the standard analytical account of criminal justice thinking. Moving from the legal theory of Andrew Ashworth, Antony Duff, George Fletcher, Michael Moore, and others to the jurisprudence of the courts, this book analyses the seemingly irresolvable problems of punishment, responsibility, and justice in the criminal law from a relational point of view. Against the postmodern approach, the book argues for the need to retain what remains of moral value in Kantianism by seeking ‘a non-Kantian answer to the Kantian question’ of individual justice.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0003
- Subject:
- Law, Philosophy of Law
This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why ...
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This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why nevertheless if the semantic sting is a good argument against explanations of the meaning of the word ‘law’ it is also a good argument against any explanation of the concept of law, including that which Hart provides; and (3) why it is a bad argument. It then explains some mistakes that may have led Dworkin to endorse his third thesis about the nature of legal philosophy, namely the thesis that jurisprudence is a silent prologue to any legal decision.Less
This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why nevertheless if the semantic sting is a good argument against explanations of the meaning of the word ‘law’ it is also a good argument against any explanation of the concept of law, including that which Hart provides; and (3) why it is a bad argument. It then explains some mistakes that may have led Dworkin to endorse his third thesis about the nature of legal philosophy, namely the thesis that jurisprudence is a silent prologue to any legal decision.
d'Aspremont Jean
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199696314
- eISBN:
- 9780191732201
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199696314.003.0003
- Subject:
- Law, Public International Law, Philosophy of Law
This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general ...
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This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general legal theory and in the theory of sources of international law. It starts with a sketch of the role played by formalism in the writings of Hobbes, Bentham and Austin — those who adhered to a restrictive source thesis — before turning to Kelsen and Hart who reinforced the source thesis by the so-called social thesis. Mention is also made of Hart’s followers, Raz, McCormick, Coleman as well as others who have been inspired by him like Bobbio Tamanaha and Twining. The chapter then turns to international law to examine how such a conception of formalism has been received and transposed in the mainstream theory of sources. In doing so, the chapter points to the anti-theoretical postures of most 20th and early 21st century international lawyers which, despite adhering to the source thesis in their great majority, barely explored the theoretical foundations of the mainstream theory of sources of international law. Particular attention is also paid to the place and role of formalism in the constitutionalist theories of international law.Less
This chapter discusses the emergence of formal law-ascertainment as it growingly manifested itself in a model of ascertainment based on the pedigree of rules (the so-called source thesis) in general legal theory and in the theory of sources of international law. It starts with a sketch of the role played by formalism in the writings of Hobbes, Bentham and Austin — those who adhered to a restrictive source thesis — before turning to Kelsen and Hart who reinforced the source thesis by the so-called social thesis. Mention is also made of Hart’s followers, Raz, McCormick, Coleman as well as others who have been inspired by him like Bobbio Tamanaha and Twining. The chapter then turns to international law to examine how such a conception of formalism has been received and transposed in the mainstream theory of sources. In doing so, the chapter points to the anti-theoretical postures of most 20th and early 21st century international lawyers which, despite adhering to the source thesis in their great majority, barely explored the theoretical foundations of the mainstream theory of sources of international law. Particular attention is also paid to the place and role of formalism in the constitutionalist theories of international law.
Guillermo O'Donnell
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199587612
- eISBN:
- 9780191723384
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199587612.003.0003
- Subject:
- Political Science, Comparative Politics, Democratization
This chapter traces the origins of the conception of the human being as an agent, i.e., somebody endowed with practical reason and moral judgement. It then looks at the embodiment of this conception ...
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This chapter traces the origins of the conception of the human being as an agent, i.e., somebody endowed with practical reason and moral judgement. It then looks at the embodiment of this conception in various ethical and, especially, legal theories and practices. These practices made the carriers of the respective rights legal persons — a condition that in the Northwest quadrant of the world was expanded by conflictive and non-linear processes to a gamut of political, civil, social, and lately also cultural rights. These processes were concomitant with the emergence of liberalism, at a later stage of constitutionalism, and quite recently of the full political democratization entailed by the adoption of the universalistic wager mentioned in the preceding chapter. Some differences with other regions of the world are briefly mentioned for further comparison in subsequent chapters.Less
This chapter traces the origins of the conception of the human being as an agent, i.e., somebody endowed with practical reason and moral judgement. It then looks at the embodiment of this conception in various ethical and, especially, legal theories and practices. These practices made the carriers of the respective rights legal persons — a condition that in the Northwest quadrant of the world was expanded by conflictive and non-linear processes to a gamut of political, civil, social, and lately also cultural rights. These processes were concomitant with the emergence of liberalism, at a later stage of constitutionalism, and quite recently of the full political democratization entailed by the adoption of the universalistic wager mentioned in the preceding chapter. Some differences with other regions of the world are briefly mentioned for further comparison in subsequent chapters.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0013
- Subject:
- Law, Philosophy of Law
This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional ...
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This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional interpretation depend in part on the theory of constitutional authority. In determining the conditions for constitutional legitimacy, the theory of the authority of the constitution contributes to the determination of principles of interpretation. It is argued that this sound principle is also the source of many false analogies motivated by attempts to assimilate the authority of the constitution to that of other parts of the law.Less
This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional interpretation depend in part on the theory of constitutional authority. In determining the conditions for constitutional legitimacy, the theory of the authority of the constitution contributes to the determination of principles of interpretation. It is argued that this sound principle is also the source of many false analogies motivated by attempts to assimilate the authority of the constitution to that of other parts of the law.
Michael Freeman (ed.)
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.001.0001
- Subject:
- Law, Family Law, Human Rights and Immigration
The Current Legal Issues series is based upon an annual colloquium held at University College London. Each year leading scholars from around the world gather to discuss the relationship between law ...
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The Current Legal Issues series is based upon an annual colloquium held at University College London. Each year leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloquium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. This book, the fourteenth volume in the Current Legal Issues series, offers an insight into the state of law and childhood studies scholarship today. Focusing on the inter-connections between the two disciplines, it addresses the key issues informing current debates. Topics include cyber bullying, children's human rights, childhood in conflict-stricken areas, foster care, and parental discipline.Less
The Current Legal Issues series is based upon an annual colloquium held at University College London. Each year leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloquium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. This book, the fourteenth volume in the Current Legal Issues series, offers an insight into the state of law and childhood studies scholarship today. Focusing on the inter-connections between the two disciplines, it addresses the key issues informing current debates. Topics include cyber bullying, children's human rights, childhood in conflict-stricken areas, foster care, and parental discipline.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0002
- Subject:
- Law, Philosophy of Law
This chapter argues that a theory of law is successful if it meets two criteria: first, it consists of propositions about the law which are necessarily true, and, second, they explain what the law ...
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This chapter argues that a theory of law is successful if it meets two criteria: first, it consists of propositions about the law which are necessarily true, and, second, they explain what the law is. The chapter clarifies the relationship between this thesis and the traditional way of understanding the task of legal theory as explaining the concept of law. It then examines several difficulties with the idea that there can be a theory of law in general, a theory which since true is necessarily true of the law wherever and whenever it is to be found. The problems examined arise out of the changing nature of concepts, out of the dependence of law on concepts, and out of the alleged impossibility of understanding alien cultures, using alien concepts.Less
This chapter argues that a theory of law is successful if it meets two criteria: first, it consists of propositions about the law which are necessarily true, and, second, they explain what the law is. The chapter clarifies the relationship between this thesis and the traditional way of understanding the task of legal theory as explaining the concept of law. It then examines several difficulties with the idea that there can be a theory of law in general, a theory which since true is necessarily true of the law wherever and whenever it is to be found. The problems examined arise out of the changing nature of concepts, out of the dependence of law on concepts, and out of the alleged impossibility of understanding alien cultures, using alien concepts.
MATTHEW H. KRAMER
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298991
- eISBN:
- 9780191705205
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298991.003.0002
- Subject:
- Law, Philosophy of Law
This chapter presents a detailed exposition of the Hohfeldian analysis of legal positions (rights, duties, liberties, no-rights, powers, liabilities, immunities, and disabilities). It then presents ...
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This chapter presents a detailed exposition of the Hohfeldian analysis of legal positions (rights, duties, liberties, no-rights, powers, liabilities, immunities, and disabilities). It then presents an overview of the debates between the Interest Theory and the Will Theory of legal rights, after which it champions the Interest Theory at length. Among the questions considered is whether a theory of legal rights must rely on certain ethical assumptions or not.Less
This chapter presents a detailed exposition of the Hohfeldian analysis of legal positions (rights, duties, liberties, no-rights, powers, liabilities, immunities, and disabilities). It then presents an overview of the debates between the Interest Theory and the Will Theory of legal rights, after which it champions the Interest Theory at length. Among the questions considered is whether a theory of legal rights must rely on certain ethical assumptions or not.
Gunther Teubner
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585007
- eISBN:
- 9780191723469
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585007.003.0016
- Subject:
- Law, Constitutional and Administrative Law
This chapter, beginning from the empirical observation that transnational private actors intensively regulate entire areas of life through their own private governance regimes, seeks to reposition ...
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This chapter, beginning from the empirical observation that transnational private actors intensively regulate entire areas of life through their own private governance regimes, seeks to reposition the main constitutional question we face today. The critical questions are raised by asking how legal theory should react to these major trends of privatisation and globalisation: how can nation-state constitutionalism be redesigned in a way that might enable constitutionalism's achievements to cope with these developments? It argues that overcoming state-centrism and accepting the polycentric form of globalisation are two sides of the same coin, and they result in the need to accept that the world of nation-state constitutionalism finds a functional equivalent in the emerging production of a global societal law.Less
This chapter, beginning from the empirical observation that transnational private actors intensively regulate entire areas of life through their own private governance regimes, seeks to reposition the main constitutional question we face today. The critical questions are raised by asking how legal theory should react to these major trends of privatisation and globalisation: how can nation-state constitutionalism be redesigned in a way that might enable constitutionalism's achievements to cope with these developments? It argues that overcoming state-centrism and accepting the polycentric form of globalisation are two sides of the same coin, and they result in the need to accept that the world of nation-state constitutionalism finds a functional equivalent in the emerging production of a global societal law.
Andrei Marmor
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780195338478
- eISBN:
- 9780199855360
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195338478.003.0005
- Subject:
- Law, Philosophy of Law
This chapter argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law, along the lines suggested by H. L. A. Hart. It distinguishes among five ...
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This chapter argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law, along the lines suggested by H. L. A. Hart. It distinguishes among five possible views about the relationship between normative claims and legal positivism, arguing that some of them are not at odds with Hart's thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations; and this is precisely as it should be.Less
This chapter argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law, along the lines suggested by H. L. A. Hart. It distinguishes among five possible views about the relationship between normative claims and legal positivism, arguing that some of them are not at odds with Hart's thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations; and this is precisely as it should be.
