A collection of brand new and revised essays from eminent scholar of public law, Martin Loughlin, that systematizes his work on political jurisprudence - a school of thought that contends the key to understanding the nature of legal order lies in how political authority is constituted.

Comparative religion scholar Thomas Berry’s influential concept of “Earth jurisprudence” has been helpfully elaborated in three principal books. My first section identifies four of their common themes, deriving therefrom an implicit narrative: (1) the basis of ecology is autopoiesis, which (2) originally generated human communities and Indigenous vernacular laws, which were (3) later reasserted by forest defenders who fought to create the Magna Carta’s “Charter of the Forest,” which is (4) now championed globally by the Indian physicist and (...) eco-activist Vandana Shiva’s Earth Democracy movement. My next three sections identify mutually exclusive elements of the three books, deriving the following alternative narrative: self-conscious new dancing rituals (Cullinan) could empower an historically informed reconstruction of private property (Burdon) via commons-based vernacular law (Weston and Bollier). And my conclusion offers one template for such a strategy, namely a new environmental variation on my dancing-poetic conception of legal justice, christened “emerald star-law.”. (shrink)

Ben Rich’s stated aim in this book is to prove that the legal system has had a positive rather than a negative impact on medical practice and research. When lawyers are often attacked (by the medical professions and governments alike) for their role in medical litigation this conclusion seems to be at odds with our experience. Rich’s text is a timely and scholarly contribution to the debate about the role of the legal system in medicine. While it may not prove (...) to be completely convincing, the work offers penetrating insights into how the American legal system has influenced bioethics, primarily because of the way that it provides an ultimate forum for the resolution of ethical disputes. Rich’s initial chapters serve as an introduction to schools of medical ethics and jurisprudence. Chapters two and three will be of real benefit to the new student of bioethics as Rich provides very clear and concise summaries of the major schools of ethics …. (shrink)

Anthropocene jurisprudence amounts to a legal attitude that posits human beings as the ultimate subject to which the legal ontology, epistemology, and language serve. This attitude inevitably leads to exceptionalism not only in terminology but also in the impact which legal verdicts incur, especially on the natural environment and species. In this paper, we make a coupled reading of jurisprudence and environmental science while suggesting a post-Anthropocene model of law which can be made philosophically consistent by appropriating (...) a new theory of human as a 'biocultural creature' to outgrow the attitude of exceptionalism in law. In doing so, we take recourse of dynamic systems and complexity theory for a law to account for the ontology, epistemology and linguistics of post-Anthropocene jurisprudence. (shrink)

“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is (...) not only consistent with traditional jurisprudence; it is an essential branch of it. (shrink)

In this unique book, leading legal scholars and philosophers provide a breadth of perspectives and inspire stimulating debate around the transformations of jurisprudence in a globalized world. Traditionally the central debates surrounding jurisprudence and legal theory are concerned with the elucidation of the particularities of state-law. This innovative book considers that this orthodox picture may no longer be tenable, given the increasing standardization of technologies, systems and information worldwide.Split across four thematic parts, this timely book provides a broad (...) overview of the topic, followed by in depth analyses investigating the modifications to jurisprudence's methodological approaches driven by globalization, the concepts and theoretical tools required to account for putative new forms of legal phenomena, and normative issues relating to the legitimacy and democratic character of these legal orders. Chapters cover legal encounters with alterity in a post-monist mode, normative legal pluralism, relating law and power in a historical global context, cosmopolitan legitimacy and human rights and dignity in a corporate world.Jurisprudence in a Globalized World will be a key resource for students and scholars working in global transnational law, public international law and legal theory and philosophy. (shrink)

The paper suggests a novel methodology for determining the state of legal doctrine on a particular issue by legal scholars. This methodology is inspired by the philosophical field of phenomenology. In particular, the tool of eidetic reduction developed by Edmund Husserl is applied to reach inter-subjectively valid assessments of doctrine. The methodology developed here argues that scholars who wish to discover legal doctrine on a particular issue need to first define general paradigms that explain the relevant legal field. Then, they (...) should develop a hypothesis about the law on the particular issue that concurs with the essential qualities of all these paradigms. Finally, to determine if a hypothesis about the content of the law should be accepted or rejected, it must be checked against legal sources that often include judgments. Reasoning by analogy should be used to learn from judgments with the same policy implications as the doctrine suggested by the hypothesis. The paper offers several heuristics—demonstrated with examples from international law—that can be used to find judgments that have the same policy implications without determining conclusively what these implications are. (shrink)

The question examined in this study is not merely how a Nietzschean critique of law would look had Nietzsche ever applied his genealogical method to the question of law, but also what positive function Nietzschean philosophy may ascribe to law, and how law must then be transformed. The methodological parable imagines a “post-genealogy” or “pot-ressentiment” phase of the human condition, akin to the Marxist “post-revolutionary” phase: how would law look for the person of power - overman or otherwise - who (...) needs to live among others? How is normativity possible - what are its forms and functions - in a social world that has undergone a reevaluation of all values? The study traces three possible models for conceptualizing law in Nietzschean terms, each requiring a radical shift from traditional (in different contexts: liberal, Christian, bourgeois) conceptions. The first one is play: law as affirming and embracing the essence of the Dionysian, which is perpetual becoming. Play requires us to let go of law's role as the curtailer of arbitrariness. An integral part of the Nietzschean program, it requires a radical reevaluation: not just law's content is overcome, nor merely its bourgeois forms (in Pashukanis' critical terms), but its “internal” or “inherent” values of certitude and stability are overcome as well. The model I offer for play is not Zarathustra's dicethrow but Borges' The Lottery in Babylon. The second model is that of resistance, framed by Nietzsche's analysis of power and Deleuze's distinction between active and reactive forces. The insight here is that power requires resistance, and it is law's primary function to empower the other in order to invest value in meeting and confronting her; thus the monism of the will to power not only does not do away with normativity in the public sphere but actually requires it - but for goals opposite to those of liberalism. Resistance is linked to the third model, fashioned after Nietzsche's model of education: here, law performs not as a socializing agent but rather as a “liberator” of authenticity. Its function is analogous to that of a mentor whose role is to ultimately encourage the pupil into coming into her own will, shedding ressentiment and bad conscience in an active, i.e. non-conscious way; in its relation to consciousness it is the opposite of psychoanalysis. A fourth consideration is then offered, the role of normativity in self-overcoming, or self-legislating; namely, how does normativity figure in the will to power's most significant challenge. While all these models work from an interpretation of the will to power as becoming, the last two are especially dependent on the active-reactive distinction. The cornerstone is not to mix up power with representations of power; to realize that the case is not the will that desires power (as an object of desire, this would necessarily involve a representation of power) but power that wills becoming. In dealing with this metaphysical question I expound on a similar crucial interpretation, originally offered by Deleuze; however, I break off from Deleuze's claim that the will to power has nothing to do with any notion of struggle. If this discussion of the will to power is missed , or if it is wrong, the main argument of this article can not hold. Finally, I use this interpretation of the will to power to solve Kafka's riddle in The Trial: a necessary move once one realizes that, in the ethical history of western culture, Kafka's parable of the seeker of the law before its closed gates continues a sequence that began with Plato's fable of the cave and continued with Zarathustra's cave parable. I add three points that may be termed methodological or contextual. The first is positioning Nietzsche's limited discussion of law and politics as a derivative of his metaphysics of the will and treatment of moral psychology, not as an independent topic to be searched and indexed in some textual corpus. The second is to understand the question of normativity in its particularly Nietzschean sense, i.e. “what is X to me/to the overman?”, and not in the Kantian sense of uncovering the conditions that entail any synthetic, a-priori sentence (such as normative ones). The last comment places the Nietzschean project in a larger pattern that defined radical thought in the late nineteenth and early twentieth centuries, and whose other cases are Marx and Freud: a new metaphysics (will to power/materialism/id) that uncovers a state of bondage, psychological and material, in which law plays a pivotal role in its function of reinforcer and supplier of a legitimizing language (respectively, of ressentiment, of the relations of production, of Oedipus and the bourgeois family); and finally radical, yet partial ways of overcoming bondage that are not mutually translatable - genealogy, revolution, psychoanalysis. (shrink)

African jurisprudence, like African philosophy, continues to be hotly debated. This article contends that the debate straddles the uniqueness claim which either emphasises the existence or possibility of a peculiar legal framework on the continent, and a historical co-extensional position reiterating that African jurisprudence is a continuum of other legal traditions. The article argues that there is no uniquely African jurisprudence, and that what obtains within the structures of jurisprudence on the continent also exists within various (...) legal traditions elsewhere, and as such can at best be described as ‘jurisprudence in Africa’ rather than ‘African jurisprudence’. It defends this thesis through analytic and comparative explications of the content of natural law theory and legal positivism as experienced on the continent. It concedes that relics of the colonial legal experience create contestations that inform scholars’ calls for a return to traditional legal systems. It concludes that a reconstructive jurisprudence in Africa must take cognisance of the continent’s historical and evolutionary legal experiences, but that a unified or monolithic theory may not be sufficient to address the choice of functional jurisprudence. Keywords African jurisprudence, jurisprudence in Africa, African legal evolution, diffused legal theories. (shrink)

Jurisprudence For a Free Society is a remarkable contribution to legal theory. In its comprehensiveness & systematic elaboration, it stands among the major theories. It is also the most important jurisprudential statement to emerge in the post-war period. The pioneering work of Lasswell & McDougal on law & policy is already legendary. Most of the work produced by these scholars together & in collaboration with their students represent applications of their basic theory to a wide assortment of international & (...) national legal & policy problems. Now, for the first time, the authoritative statement of their legal philosophy appears as a single volume. In Part I the authors develop their fundamental criteria for a theory about law, including the requirements of clarifying observational standpoint, focus of inquiry & the pertinent intellectual tasks incumbent on the scholar & decisionmaker for determining & achieving common interests. Trends in theories about law, including Natural Law, the Historical School, Positivism, the Sociological Study of Law, American Legal Realism & other contemporary theories, are explored for what they might contribute to the achievement to the authors' conception of an adequate jurisprudence. In Part II, the social process as a whole & the particular value-institutional processes that comprise it are described & analyzed. Because people establish, maintain & change institutions, the dynamics of personality & personality's relation to law is delineated. Part III explores the intellectual tasks of policy thinking, from clarification of values, through description of trend, the scientific examination of conditions, projection of future developments & the invention of alternatives. Part IV examines the structure of decision in a free society, a society in which the achievement of human dignity is confirmed in both word & deed. Six appendices bring together monographs by the authors over a period of forty years which deal, in more detail, with particular matters treated in the body of the book. (shrink)

Under the influence of a narrowly understood scientific legal positivism, jurisprudence has neglected interdisciplinary research for a long time. However, today there are strong practical and scholarly reasons for an interdisciplinary analysis of law triggered, e.g., by bioethics, life sciences, economics and ecology. And yet the very subject matter of law shimmering between normativity and descriptivity seems to resist all attempts to be taken in by common enterprises across disciplines: How then is the necessary interdisciplinary research in jurisprudence (...) possible without abandoning its core, legal dogmatics? This question was discussed at a special working group during the IVR-World Congress in Cracow. The papers have been polished and updated for publication. The volume falls into two parts: One is directed at the basic conceptual and institutional questions of interdisciplinary research in jurisprudence; the other one concentrates on one fruitful and highly important field of interdisciplinary research, constitutionalism. The volume brings together a truly international and in itself interdisciplinary group of experts in the field, from Finland to Brazil and from Spain to Greece. (shrink)

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and (...) formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed. (shrink)

This book is the first authoritative text on virtue jurisprudence - the belief that the final end of law is not to maximize preference satisfaction or protect certain rights and privileges, but to promote human flourishing. Scholars of law, philosophy and politics illustrate here the value of the virtue ethics tradition to modern legal theory.

Stone, J. Thoughts on supposed "Death of law".--Krishna Iyer, V. R. Jurisprudence and jurisconscience.--Sharma, G. S. Law and social change in India.--Sharma, S. D. The concept of justice in Manu.--Chand, H. Legal values for a developing country.--Ramarao, T. S. The new international law relating to the rights and duties of States.--Sinha, B. S. Custom and customary law in Indian jurisprudence.--Mazumdar, D. L. Techno-economic structure of our industrial society.--Subrahamanian, N. Law and social change.

The pluralist turn in jurisprudence has led to a search for new ways of thinking about law. The relationships between state law and other legal orders such as international, customary, transnational or indigenous law are particularly significant in this development. Collecting together new work by leading scholars in the field, this volume considers the basic questions about what would be an appropriate theoretical response to this shift: how precisely is it to be undertaken? Is it called for by developments (...) in legal practice or are these adequately addressed by current legal theory? What normative challenges are raised, and what fresh promises might the pluralist turn hold? What distinctive insights can it offer for theorising about law? This book presents a rich variety of resources drawn from a number of theoretical approaches and demonstrates how they might be brought together to generate an increasingly important pluralist jurisprudence. (shrink)

Questions of jurisdiction -- The metaphysics of jurisdiction -- On the founding of law's jurisdiction and the politics of sexual difference : the case of Roman law -- Guantanamo Bay, abandoned being and the constitution of jurisdiction -- Conjuring Palestine : the jurisdiction of dispossession -- Jurisdiction and nation-building : tall tales in nineteenth-century Aotearoa/New Zealand -- The suppression of state interests in international litigation -- Mapping territories -- Placing jurisdiction -- A jurisdiction of body and desire : exploring the (...) boundaries of bodily control in prostitution law -- Subjects of jurisdiction : the dying, Northern Territory, Australia, 1995-1997 -- Embracing jurisdiction : John Ford's The man who shot Liberty Valance -- Jurisdiction and the colonisation of sublime enjoyment. (shrink)

This thought-provoking book explores the multifaceted phenomenon of objectivity and its relations to various aspects of the law and practical reasoning. Featuring contributions from an international group of researchers from differing legal contexts, it addresses topics relevant not only from a theoretical point of view but also themes directly connected with legal and judicial practice. Beginning with an introduction from the editors proposing a new account of the meaning of objectivity, the book is then divided into three broad themes illuminated (...) by this account. Chapters first address a range of problems linked to the relationship between objectivity and jurisprudence, before turning in the second part to an analysis of the functions of objectivity in legal interpretation. The final part then deals with the function of objectivity in practical reasoning. Offering a spectrum of scholarly insights within a coherent intellectual framework, this book will be a crucial read for scholars and graduate students of legal philosophy and legal theory. Its discussion of objectivity as it relates to legal practice and practical reasoning will also be of interest to practitioners such as judges, arbitrators and lawyers. (shrink)

This paper aims at understanding the concept of convention in mechanics as a notion transferred from the field of jurisprudence. This enables us to clarify it as a new epistemic category having a pertinent role in the transformation of mechanics in the nineteenth century. Such understanding permits a separation from linguistic and arbitrary conventions, thus highlighting its epistemic features and not transforming fundamental principles into mere arbitrary agreements. After addressing the main references in the literature discussing the role of (...) convention in mechanics, we analyze its classical use as a concept originating from law. Then we explain its use by Carl G. Jacobi, Ferdinand F. Reech, and J. Henri Poincaré. Here we also show how their uses conform to the features analyzed regarding conventions in jurisprudence. Finally, we try to explain how the use of this concept, among other factors, contributed to the transformation of mechanics. (shrink)

This new edition of a standard reference of jurisprudence has been fully revised. Many recent developments which touch on the relationship of laws to morals--homosexuality, obscenity, suicide, and abortion--are discussed, together with controversial economic aspects of modern legislation on such as topics as restrictive trade practices and trade unions.

This new edition of Jurisprudence brings the book fully up to date and incorporates the following new topics: Utilitarianism, Scandinavian realism, Feminism, Liberalism, the New Critics, and the Hart v Dworkin debate. It also includes a separate chapter on Dworkin's Law's Empire, and the previous chapter on Rights has been substantially revised, to make this a useful and highly readable addition to the student's library.

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, but, given existing debates (...) about experimental philosophy generally, one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

Levinas and Adorno both refuse to translate their stringent ethical convictions into a programmatic social theory because translating their theories of non-identity into models of governance would necessarily perpetrate, en masse, the very subsumptive violence they denounce. Although Levinas and Adorno have come to provide ethical guidance to Continental philosophers, their outright refusal to be drawn into applied theory has caused innumerable difficulties for progressive theorists compelled by their critiques of instrumental reason but handcuffed by their skepticism toward practical reform. (...) I do not mean to suggest that Adorno and Levinas were not personally engaged with political causes or that numerous interpreters have not extrapolated political content from their work, but rather that Levinas and Adorno expressly blocked the conversion of ethics into political and legal programs on ethical grounds. This paper outlines the procedural and substantive questions that I find most worrisome for a "Jurisprudence of Alterity" motivated by Levinas or Adorno. (shrink)

This paper looks to Hannah Arendt's thinking about freedom and revolution to shed light on the "revolutionary jurisprudence" of South African Constitutional Court Justice Laurie Ackermann. As Arendt understands it, revolution is the coincidence of the idea of freedom and the experience of a new beginning. Arendt insists that only a government that harbors the revolutionary spirit can secure a stable space for freedom in the modern world. In asking what institutional spaces of exist that might preserve a space (...) of freedom in modern society, Arendt settles upon the Constitution and its institutional Praetorian guard, the Supreme Court. And yet, Arendt argues that the democratic and scientific trends have eroded the Supreme Court's freedom have threatened to eradicate freedom from the American public sphere. The paper looks to Justice Ackermann's jurisprudence as a way to reinvigorate Constitutional jurisprudence as a space for freedom. (shrink)

This scholarly and historically rich study shows the originality of Leibniz's moral and religious thought, and its coherence with his philosophy as a whole. At the basis of Leibniz's thought the author sees a stress on essence and the univocity of being, and a resulting belief that metaphysics studies being and truth as such, prior to distinguishing kinds of being and truth. This belief in truth is seen as the source of Leibniz's belief in a rationality and justice common to (...) God and man--the basic principle of his universal jurisprudence and theodicy. A thread of criticism runs through the book, to the effect that Leibniz's stress on essence and continuity causes him to blur the sharp difference between infinite uncreated Being and finite created beings.--R. H. (shrink)

This thesis aims to critique the Universal Declaration of the Rights of Mother Earth and its underlying moral justification in order to provide a stronger and improved version of both. In Chapter 1 I explore what sort of moral justification is necessary to establish the Universal Declaration on firm grounds and explore its relation to environmental ethics and rights discourse. I argue that a non-anthropocentric perspective is necessary to justify the Universal Declaration’s rights. In Chapter 2 I explore the underlying (...) justification of the Universal Declaration as discovered in the works of Cormac Cullinan and Father Thomas Berry. I argue that their ethical framework is indeterminate, has many ambiguities and uncertainties, and, among other problems, it does not provide a clear action-guiding framework. In Chapter 3 I develop an alternative justification for the Universal Declaration. I argue against many predominant moral theories, that in light of our best scientific and moral understanding we should expand the realm of moral concern to include all living beings, a moral theory I call Life’s Imperative. In Chapter 4 I illustrate that Life’s Imperative is a much stronger, more coherent justification for the Universal Declaration, one that coheres with both our best understanding of the natural world and our relation to it, and to an environmental ethic reflective of that relationship. Unfortunately many of the weaknesses in the current implicit justification of the Universal Declaration have also led to it enshrining rights that are themselves problematic. In order to address these issues, I revise its rights to accord with the stronger justification that I established in Chapter 3. The end result of doing so is a revised version of the Universal Declaration. (shrink)

In this revised edition, two distinguished philosophers have extended and strengthened the most authoritative text available on the philosophy of law and jurisprudence. While retaining their comprehensive coverage of classical and modern theory, Murphy and Coleman have added new discussions of the Critical Legal Studies movement and feminist jurisprudence, and they have strengthened their treatment of natural law theory, criminalization, and the law of torts. The chapter on law and economics remains the best short introduction to that difficult, (...) controversial, and influential topic.Students will appreciate the careful organization and clear presentation of complicated issues as well as the emphasis on the relevance of both law and legal theory to contemporary society. (shrink)

Although many portions of this book have been published previously, their collection here, with some re-editing by the author, is valuable not only because the journals and studies in which they appeared are unlikely to be accessible but because they combine to make a smooth flowing, unified and well written book. Hart's mastery of the entire opus is as befits an editor in the new series of Collected Works of Jeremy Bentham. His focus on jurisprudence and philosophy of law (...) affords both a wealth of information about Bentham's under-appreciated contributions, and the insights of the foremost contemporary expositor of this emerging discipline. The book also includes a critical assessment of the work of recent writers in the field--e.g., Lyons, Hacker and of course Dworkin. (shrink)

In recent years, scholars of Machiavelli have dedicated closer attention to, on one hand, the role played by tumults, and the presence of the language of jurisprudence in his work. Until now, these two readings of Machiavelli have never intersected. This essay aims to show to what extent the language of jurisprudence was present in Machiavelli’s writings on tumults both in his early works, and above all in the Florentine Histories. Starting from Machiavelli’s analysis of the Valdichiana rebellion (...) (1503), the first part of the essay deals with ‘rebellion’ as a legal and political issue, as a specific case of the crime of lese majesty, discussed among civil and canon lawyers from commentaries on the famous imperial laws of Henry VII (1313) up through some legal consilia written in defense of Lorenzo de’ Medici and the city of Florence in relation to the Pazzi Conspiracy (1478), as well as first treatise dedicated specifically to the subject of seditions by a French jurist (1515). The essay’s second part considers the famous speech of the anonymous Ciompo in the third book of the Florentine Histories, and analyses a passage commonly overlooked by scholars : “When many err, no one is punished”. The essay shows that in this passage Machiavelli used a juridical principle, a regula iuris, which was certainly controversial and very frequently not accepted, but theoretically admitted as such. In concluding, the essay proposes some possible paths for further researchs. (shrink)

In Alan Bennett’s play The History Boys, Irwin, a sixth-form history tutor destined for a media career (based, it is rumored, on that specialist in historical controversy Niall Ferguson) sets out his views on how a difficult change in the law that will affect individual rights should be dealt with. The tactic Irwin advocates is for the Government to insist that the Bill, rather than reducing the liberty of the subject “amplifies it.” The use of paradox, notes Irwin, “works well (...) . . . the loss of liberty is the price we pay for freedom type thing” (Bennett 2004, 3). Thus, in a few sentences, Bennett encapsulates one of the greatest, or, at least, what we in the West have come to think of as one of the greatest, of .. (shrink)

This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms (...) of legitimation to the rule of law. Only two of these authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries on their works have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors place the Weimar debate in the context of the history and politics of the Weimar Republic and the struggle for constitutionalism in Germany. This critical scrutiny of the Weimar jurisprudence of crisis offers an invaluable overview of the perils and promise of constitutional development in states that lack an entrenched tradition of constitutionalism. (shrink)

Objective Semiotica is published in six annual issues, in two languages (English and French). From time to time, Special Issues, devoted to topics of particular interest, are assembled by Guest Editors. The publishers of Semiotica offer an annual prize, the Mouton d'Or, to the author of the best article each year. The article is selected by an independent international jury. Topics We welcome papers reporting results of research in all branches of semiotic studies. Article formats Research articles, in-depth reviews, guest (...) editorials, reports Mouton D’Or Winner 2022 "Semiotricité et corps en jeu", Parlebas, Pierre, 248, 9-35. The judges commented: "The Committee members made this decision based on many appreciations. First, the article contains a concise theory on semiotics of movement, synthesizing decades of research of the author. It opens an exciting framework for the contribution of many other authors. The theoretical grounds of semiotircity are built on the most classical semiotic approaches and represent a genuine development. Second, the article refreshes semiotics methodology in very original way, by engaging the applied semiotics for furtive and instantaneous activities analysis. Third, the article is pretty clear and well structured, written in very comprehensible French. The theoretical frame it opens is thorough and far reaching. Fourth, the semiotic theory of movement comes in a very special moment when the whole world is football, but it covers also many other areas of applicability which reflect major trends such as the general gamification of life thanks to new media and digital technologies. It is crucial for semiotic theory to open its theoretic scope towards significant cultural trends and become more attractive for young researchers." Les membres du comité ont pris leur décision en fondant leur appréciation sur quatre éléments principaux. Premier élément : l'article, en peu de mots, en prenant appui sur des décennies de recherche de la part de l'auteur, déploie de manière précise les termes d'une sémiotique du mouvement. Les fondements théoriques de la sémiotricité sont construits sur des approches sémiotiques bien établies et représentent un véritable développement dans le domaine. En cela, le texte ouvre un cadre passionnant pour les contributions de nombreux autres chercheurs. Deuxièmement, l'article renouvelle la sémiotique appliquée de manière très originale, l'engageant dans une approche efficace des actions instantanées et furtives; la méthodologie sémiotique en général en tire donc aussi profit. Troisième point, en plus d'être profond, avec un cadre théorique d'ampleur et de grande portée, l'article est particulièrement bien structuré et écrit dans un français très compréhensible, ce qui est un véritable gain pour sa diffusion. Enfin, quatrièmement, s'il est indéniable que le texte pourrait bénéficier d'une visibilité complémentaire due à la ferveur liée au contexte récent de la coupe du monde de football au Qatar, il couvre surtout de nombreux autres domaines d'applicabilité qui reflètent des tendances majeures telles que la gamification générale de la vie, portée par les nouveaux médias et les technologies numériques. L'on y voit une belle opportunité pour la théorie sémiotique d'ouvrir son champ à la faveur de tendances culturelles significatives; ceci est une garantie pour continuer à attirer de nouvelles générations de chercheurs. (shrink)

This Article calls for a departure from the ‘positivist–professional’ definition of Elder Law. It offers a new definition that demands answers regarding the justifications for this legal area and the normative base that should guide its content. The paper draws on findings from a qualitative study with grown children who have an elderly parent in need. These findings point toward a) a preliminary theoretical framework that justifies a special area of Elder Law, embracing and transcending that of anti-ageist law, and (...) b) the relevance of Family Law jurisprudence as a normative inspiration for this legal area. (shrink)

. “The Notebook Corner,” edited by Enrico Pattaro, makes its first appearance here as a new section of Ratio Juris. This new section can be described in a sense as an offshoot of the project for A Treatise of Legal Philosophy and General Jurisprudence, a work still in progress composed of five theoretical volumes and six historical ones. The theoretical volumes receive a brief presentation in the paper immediately below, with a specific focus on Volume 1, entitled The Law (...) and the Right: A Reappraisal of the Reality That Ought to Be. This volume is then discussed as well by Rosaria Conte and Cristiano Castelfronchi in the second paper of this “Notebook Corner”. (shrink)

The rapid development of complex income taxation and welfare systems in the 20th century may give the impression that progressive wealth redistribution systems are uniquely modern. However, religious systems provided similar mechanisms for addressing economic injustice and poverty alleviation centuries earlier. Zakat is the obligation of almsgiving and is the third pillar of Islam--a requirement for all believers. In the early development of the Islamic community, zakat was collected as a tax by the state and the funds were distributed to (...) a defined set of needy groups. As a theoretical matter, there are three insights that make zakat an especially relevant subject for modern legal scholars. First, zakat is an example of a modest wealth tax combined with an income tax that may be illustrative in the discourse regarding wealth taxes. Second, the jurisprudence of zakat supports the ethical conclusions of scholars who contend that property rights are attached to post rather than pre-tax income. Third, to the extent that zakat is considered a principal source of revenue for public programs, it might imply a limited role for government, focusing on equitable distribution of goods. This paper begins with a thorough evaluation and synthesis of the traditional Islamic jurisprudence related to zakat. The next section identifies three broad approaches to zakat adopted by modern Muslim states, with particular emphasis on ways that zakat is institutionalized legally. This is followed by an empirical analysis of the correlation of the approaches to zakat with individual income and wealth stratification. The article concludes with observations and policy recommendations related to zakat and broader legal theory based on the earlier qualitative analysis and empirical findings. (shrink)

The last decade of the Qing dynasty and Republican period saw intensive efforts to revise the Qing Code, promulgate modern legal codes based on Japanese and German law, establish a modern system of courts, and develop a professional corps of lawyers and jurists. These institutional reforms were implemented as part of the drive to have extraterritoriality rescinded and safeguard the sovereignty of the Qing dynasty and then Republic of China. The reforms were accompanied by new categories within civil and criminal (...) law, new conceptions of legal knowledge and expertise, and rich discussions over sources of law which took place within the legal realm as well as the readership of Republican newspapers and journals. If, as Roger Berkowitz writes in his study of scientific codification in continental Europe, “in a legal system, there must be some way that the law comes to be known,” how did ways of knowing law change during this period of legal reform and broader intellectual change? Through a survey of jurisprudence textbooks and other legal publications, this paper argues that writers in early 20th-century China came to define jurisprudence in positivistic terms, ultimately using new conceptions of science and social science to identify its place within a new ordering of modern knowledge. (shrink)

What does it mean to understand the world religiously? How is such understanding to be distinguished from scientific understanding? What does it have to do with religious practice, transfiguring love, and spiritual well-being? New Models of Religious Understanding investigates these questions to set a new and exciting agenda for philosophy of religion. Featuring contributions from leading scholars in the field, the volume cuts across the supposed divide between analytic and continental approaches to the subject and engages the interest of a (...) broad range of philosophical and theological readers. (shrink)

This article develops a model first proposed in my book Jurisprudence and communication [67]. It takes as its starting point the generally conception that legal rules are valid norms, involving a normative content and expressing themselves in reality through observable conduct. This dualistic character of law is central. Law is both fiction and factual, ideal and real. But the viewpoint that a legal rule is a manifestation of validity in reality, through empirical acts, raises the question how rules (...) as (valid) fictions can be known and understood in their linguistic form. How is meaning attributed to the legal words and how do these words relate to the world of fact? Taking an institutional-pragmatic approach as a starting point, an analytical model is created that can be used as an instrument for the relationship between legal rules as thought objects existing only in the mind, and legal rules as observable conduct. This model seeks to revise the classical models of legal communication that basically focus on the unilateral flow of legal information between ‘senders and receivers’ and their claim of linear causality between rules and conduct. The model here constructed in the theoretical part is then applied to several case studies, in order to analyze the construction of meaning in actual use. Two fundamental rights—the older codified in 1798 and the more recent codified in 1983—in the Dutch Constitution have been analyzed using the model as an instrument. Further, the remarkable shifts in article 96 of the Constitution, the declaration of war, and its consequences, resulting in a new category of war—the armed conflict—have been analyzed, as well as the phenomenon of ‘peacekeeping missions’ involving actual warfare. The new war terminology has created vagueness with respect to the clear-cut division between war and peace, which has been reflected in several cases before Court, including the Eric O. case. The present analysis of the case studies indicates that the model was not in all cases completely tailored to the facts: for example, in the case study on article 96 a broad spectrum of observable legal and non-legal actors dominated the facts in such a way that the model did not fully cover it. The observations on my book by the three respondents in this special issue have contributed to the adaptation and extension of the model. In the Postscript my responses suggest some ways in which their ideas can be implemented. (shrink)

The application of the death penalty for perpetrators of riddah by fuqaha is a problematic violation of human rights. This is because there is no good reason to show that the punishment for riddah is the death penalty. The existence of the hadith which is considered to be the legitimacy of riddah punishment turns out to be very different from the reality of its application in the history of Islamic criminal law. This article aims to answer academic anxiety about the (...) death penalty for perpetrators of riddah as a result of the ijtihad of fuqaha as well as to confirm the construction of its historical reality in state life. This article finds that some verses of the Qur’an and the hadith which are used as legal basis by fuqaha are only understood textually and treated as absolute theological verses and hadiths, but not based on historical evidence. The history of the application of criminal punishment during the time of the Prophet shows that there is no application of the death penalty to the perpetrators of riddah, except riddah which is followed by criminal acts. So it is not solely because of the act of riddah itself, but because of a greater crime against Islam. The implementation of the death penalty for the perpetrators of riddah which is based on textual interpretation of the hadith, thus has the potential to conflict with the principles of human rights and religious freedom which have been regulated in the Qur’an. Contribution: This study enriches perspectives on the meaning of riddah as one of the strategic issues in Islam and shows that a new interpretation of riddah has become an important idea to promote a peaceful and inclusive society and provide access to justice for all. (shrink)

Van Lohuizen’s ideal of unity, must above all be seen as a challenge to attain the necessary integration of planning, research, and design to meet the requirements of a changing society. Though Van Lohuizen's ideas were influenced strongly by the rational and technical principles of the CIAM, he saw technology as a means to an end in an approach that is primarily based on humans and culture. In the ideas of Van Lohuizen, different dimensions can be traced. New developments in (...) these dimensions are discussed in the article. There is no lack of innovative ideas and methods. Nearly all the ideas and methods discussed were developed in the forties, fifties, or sixties. On the basis of the incubation period required for introduction on a wider scale, it is now time for them to find greater favor with society. Following the years of a no-nonsense policy, it seems that in many fields there is a new need for a wider, more qualitative approach. (shrink)

This article puts into perspective the practice of financial regulation in contemporary financial markets, while a new normative order has emerged. This order, heralded by algorithmic technologies, changes the conditions for the exercise of regulation: to date, it has not yet been fully acknowledged nor understood by regulatory bodies. Computer code, replacing speech and writing, induces a changeover from one normative order to another in contemporary markets: the norm, previously explicated with recourse to interpretation, is now replaced by an order (...) characterized by calculation. Such paradigm change is identified based on a discussion of works by Gilles Deleuze. In so doing, it contributes to the developing research programme in the cultures of high-frequency trading (Lange et al. 2016) and also points at broader issues for conceptualising financial regulation. (shrink)

The paper suggests replacing the shareholder/stakeholder distinction with a “Dual-Investor” model of business: stockowners provide the specific capital for business ventures, while society provides the “opportunity capital.” Thus society is an investor in every business venture. Dual-Investor theory provides a response (based purely on the ethics of investment) to Milton Friedman’s arguments that executives should maximize profit by any legal means, avoids recent criticisms by Kenneth Goodpaster and Thomas McMahon, and suggests that the dichotomy between private and public ownership (...) overlooks several important alternatives. Some consequences of the theory are detailed and a sketch of a theory of property, based on Dual-Investor theory, is appended. (shrink)

The New Jersey Supreme Court has continually avoided making moral judgments about the value of life and emphasized that such decision making should be the province of the potential parents. Recently, in Acuna v. Turkish, the court elaborated on the limitations of the decision-making right of the potential parents, and its decision demonstrated that New Jersey courts were only willing to require physicians to disclose all relevant medical information, and not moral statements that had not been agreed upon by the (...) state's medical community, people, or legislature. Acuna might be read as a departure from the trend displayed by New Jersey courts in “wrongful birth” and “wrongful life” actions toward empowering potential parents to decide if they want to bring the pregnancy to term. However, the decision actually fits squarely within this trend in that the reluctance to expand the information to which potential parents are entitled from their physicians can be directly tied to the reluctance of the New Jersey Supreme Court to weigh in on the value of life in wrongful birth and wrongful life suits. (shrink)

For decades, both economists and legal scholars have regularly used the metaphor of a ‘bundle of rights’ to describe property. In recent and growing literature, the bundle formulation has been the target of a number of critiques, some of which point to Adam Smith, among others, as a source for an alternative perspective on property. This paper examines Smith's work and argues that Smith is an appropriate authority and focal figure for a traditional, in-rem view of property. It illustrates how (...) Smith's usage of concepts in the civil-law tradition, his appreciation for Hume, and especially his unique theory of the impartial spectator, together make clear that Smith's understanding of property is irreconcilable with the modern bundle formulation. (shrink)

In this chapter, we seek to offer a fresh perspective on whether or not doctors should be “licensed to kill”. As that phrase indicates, we metaphorically refer to the adventures of fictional spy James Bond, although we hope, in doing so, that readers will not think that we are belittling the serious topic with which the chapter is concerned. Having surveyed some of the familiar arguments for and against allowing medically-assisted dying, we advance a new proposal, which seeks to strike (...) a compromise between such arguments. Our exploratory model builds on an analogy with armed response police units as they operate in England, and specifically with situations in which such officers are found to have killed someone in the course of their duties. Rather than confer immunity prospectively (as proponents of assisted dying often seek) or deny immunity completely (as opponents insist), our policy would provide a potential retrospective excuse. (shrink)

Commentary on ‘The View from Within’, edited by Francisco Varela and Jonathan Shear.

Mounting evidence shows that zero-tolerance policies, suspensions, and restrictive security policies fail to improve school safety and student behaviors, and are linked with increased risk of dropping out. Minority students are suspended at disproportionate rates, and over a million cases of corporal punishment are reported each year. Against this dismal backdrop, David Dupper presents a transformative new model of school discipline that is preventive, proactive, and relationship-based. Unlike traditional punitive and exclusionary practices, the model developed in this Workshop (...) volume focuses on enhancing students' connection to school through building relationships and bolstering social skills. Drawing on the latest research about what works, and what doesn't, this highly practical guide catalogs an array of proven and promising practices designed to engage, instead of exclude, students. Rather than illustrate a one-size-fits-all approach, it guides practitioners and administrators in identifying their school's unique needs and selecting appropriate strategies for use at the universal, targeted, and remedial levels. A five-step strategic planning model helps schools transition toward a holistic, relationship-based approach to discipline.Boxes, bullets, evidence summaries, and practice tips make this an accessible, forward-thinking resource for school personnel seeking to engage students and reduce behavior problems in the most effective, pragmatic, and cost-efficient manner possible. (shrink)

Abu Hanifa's theological ideas were not represented at the same level in every region where Hanafism spread. Although Iraq is the region where Abu Hanifa's jurisprudence views were systematized, Abu Hanifa's theological views were largely developed in the Transoxiana region. However, followers of Abu Hanifa in different regions adopted and defended the distinctive views of Hanafism. However, while in some regions these views were limited to basic theological ideas, in others a systematization was made based on this and thus (...) a comprehensive theological structure was formed. The followers of Abu Hanifa in the Transoxiana region are among the leading Hanafis who established a traditional theological structure around his views. This theological structure, which was called Maturidism in the process, was limited to the region where it was born for a long time and was spread to the west from the 11th century. When the Maturidis, who had a rich literature, came to the west, they encountered small and scattered Hanafi masses who regarded the theological views of the sect as consisting of basic theological ideas. Although they belong to the same fiqh tradition, this theological difference between them has created a new ground on which the two Hanafi factions will interact. With the power of their theological knowledge, the Maturidis tried to include the Hanafis in Iraq and Syria in their theological traditions with the texts they wrote as well as their teaching activities. Ahmad b. Muhammad al-Ghaznawi (d. after 593/1197), one of the Maturidis who migrated to the west, draws attention as one of the names that took part in this effort. His works called Usul al-din and al-Hawi al-qudsi are the first examples where this effort is clearly reflected in the texts. In these works, al-Ghaznawi uses the phrases of al-Aqīdah al-Tahawiyyah either exactly or with some minor changes, and adds Maturidi-specific views, especially the attribute of takwin. With this, al-Ghaznawi, on the one hand, reveals the compatibility of al-Aqīdah, which is the main text of non-Maturidi Hanafis, with Maturidi views, on the other hand, carries the Maturidi views to them with the expressions he added to the text. In this study, this activity of Ghaznawi, which can be described as a synthesis of al-Aqīdah al-Tahawiyyah and Maturidism, will be tried to be revealed in detail through the mentioned works. (shrink)

The creation of new search powers in the Canadian Anti-Terrorism Act post-9/11 to make citizens more transparent to state surveillance was less a new phenomenon than an extension of preexisting tendencies to make citizens transparent to the state, so the risks they pose can be efficiently managed. However, 9/11 brought about a shift in the ways in which the Supreme Court of Canada talked about terrorism; terrorism was no longer placed on a continuum of criminal activity but was elevated to (...) a threat to Canadian values as a whole. I argue that, paradoxically, this shift reconnected the Court to earlier discourses about privacy as an essential element of democratic governance and reinvigorated narratives around the importance of the public-private boundary to democratic relationships by situating privacy within narratives informed by social memory. From this perspective, privacy can be conceptualized as a status claim: as citizens, we are entitled to privacy because privacy is the boundary that creates right relationships between citizens and between citizens and the state. This avoids pitting privacy as an individual right against societal interests in transparency because it more fully actualizes Priscilla Regan’s call to theorize the value of privacy as a public good central to liberal democratic governance. This conception also reconnects Alan Westin’s original understanding of privacy as an element of liberal democracy to the sociological research he drew on, enriching the liberal conception of privacy by locating it in the intersubjective communication of cultural actors living in community. (shrink)