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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.

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.

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.

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.

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.

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.

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.

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.

This book is about the role causation plays in the attribution of both moral responsibility and legal liability (in the law of crimes, torts, and to a lesser extent, contracts). The book strips away many of the usages of the word ‘causation’ in law and legal theory, on the grounds that such usages have little to do with causation itself. What remains is the law's use of ‘causation’ to name a natural relation that is at the heart of both ordinary and scientific explanations of the world. Some normative defense is offered as to why causation in this sense is a proper basis for assessing degrees of both culpability and permissibility in morality and also in law. A more extended metaphysical defense is also offered, as to the nature of the causal relation and as to the nature of the things related by the causal relation. This normative and metaphysical analysis is used as the springboard from which to critique much of what the law currently says about causation, including the law's counterfactual test for cause in fact, its notions of intervening cause, foreseeability, harm within the risk, accomplice liability, the causal status of omissions and of non-omissive allowings, and more besides. The result is a rethinking of causation's nature and role in our legal and moral practices of assigning blame and responsibility.