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Legal Validity
by Stephen MunzerThis study of legal validity is an expanded and thoroughly revised version of my B.Phil. thesis in philosophy at Oxford University in 1969. I am grateful to Professor R. M. Hare, Dr. P. M. Hacker, and Mr. L. J. Cohen for their patient criticism of earlier drafts, and to Professor Donald H. Regan for several suggestions at a later stage. I owe a much larger debt to Professor H. L. A. Hart for his detailed comments on the completed thesis. His help has been especially gener ous in light of the fact that I have so often disagreed with him. It should not be assumed that those from whose advice I have benefited share the views expressed in this essay. I am responsible for any mistakes it may contain. In the footnotes I have used the following abbreviations: CL - Hart, The Concept of Law (1961) GT - Kelsen, General Theory of Law and State (1945) PT - Kelsen, Pure Theory of Law (1967) LJ - Ross, On Law and Justice (1958).
Legal Validity and Soft Law (Law and Philosophy Library #122)
by Pauline Westerman Jaap Hage Stephan Kirste Anne Ruth MackorThis book features essays that investigate the nature of legal validity from the point of view of different traditions and disciplines. Validity is a fascinating and elusive characteristic of law that in itself deserves to be explored, but further investigation is made more acute and necessary by the production, nowadays, of soft law products of regulation, such as declarations, self-regulatory codes, and standardization norms. These types of rules may not exhibit the characteristics of formal law, and may lack full formal validity but yet may have a very real impact on people's lives. The essays focus on the structural properties of hard and soft legal phenomena and the basis of their validity. Some propose to redefine validity: to allow for multiple concepts instead of one and/or to allow for a gradual concept of validity. Others seek to analyze the new situation by linking it to familiar historical debates and well-established theories of law. In addition, coverage looks at the functions of validity itself. The discussion considers both international law as well as domestic law arrangements. What does it mean to say that something is valid? Should we discard validity as the determining aspect of law? If so, what does this mean for our concept of law? Should we differentiate between kinds of validity? Or, can we say that rules can be "more" or "less" valid? After reading this book, practitioners, scholars and students will have a nuanced understanding of these questions and more.Chapter 6 is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com.
Legal Violence and the Limits of the Law: Cruel and Unusual
by Joshua Nichols Amy SwiffenWhat is the meaning of punishment today? Where is the limit that separates it from the cruel and unusual? In legal discourse, the distinction between punishment and vengeance—punishment being the measured use of legally sanctioned violence and vengeance being a use of violence that has no measure—is expressed by the idea of "cruel and unusual punishment." This phrase was originally contained in the English Bill of Rights (1689). But it (and versions of it) has since found its way into numerous constitutions and declarations, including Article 5 of the Universal Declaration of Human Rights, as well as the Amendment to the US Constitution. Clearly, in order for the use of violence to be legitimate, it must be subject to limitation. The difficulty is that the determination of this limit should be objective, but it is not, and its application in punitive practice is constituted by a host of extra-legal factors and social and political structures. It is this essential contestability of the limit which distinguishes punishment from violence that this book addresses. And, including contributions from a range of internationally renowned scholars, it offers a plurality of original and important responses to the contemporary question of the relationship between punishment and the limits of law.
Legal Violence and the Limits of the Law: Cruel and Unusual
by Joshua Nichols Amy SwiffenWhat is the meaning of punishment today? Where is the limit that separates it from the cruel and unusual? In legal discourse, the distinction between punishment and vengeance—punishment being the measured use of legally sanctioned violence and vengeance being a use of violence that has no measure—is expressed by the idea of "cruel and unusual punishment." This phrase was originally contained in the English Bill of Rights (1689). But it (and versions of it) has since found its way into numerous constitutions and declarations, including Article 5 of the Universal Declaration of Human Rights, as well as the Amendment to the US Constitution. Clearly, in order for the use of violence to be legitimate, it must be subject to limitation. The difficulty is that the determination of this limit should be objective, but it is not, and its application in punitive practice is constituted by a host of extra-legal factors and social and political structures. It is this essential contestability of the limit which distinguishes punishment from violence that this book addresses. And, including contributions from a range of internationally renowned scholars, it offers a plurality of original and important responses to the contemporary question of the relationship between punishment and the limits of law.
Legal Writing: 4th Edition (PDF)
by Lisa WebleyLegal Writing guides students comprehensively through this vital legal skill and addresses a range of assessment methods from exam questions to final essays and problem answers. It considers how to deconstruct essay and problem questions and how to conduct and apply legal research to answer set questions.
Legal Writing
by Lisa WebleyLegal Writing guides students comprehensively through this vital legal skill and addresses a range of assessment methods from exam questions to final essays and problem answers. It considers how to deconstruct essay and problem questions and how to conduct and apply legal research to answer set questions. Lisa Webley explains how to reference others' work clearly and correctly, making this book a useful tool for students concerned about issues of plagiarism. It also focuses on how to develop critical thinking and communicate legal arguments, with both good and bad examples of written work considered and discussed in the text. Legal Writing is particularly useful for undergraduate students, especially at the beginning of degree studies, and for GDL and CPE students too. This fully revised fourth edition includes: Guidance on the avoidance of plagiarism including examples of poor practice and best practice. Worked examples throughout the text, including guidance on deciphering essay questions in exams and coursework, along with additional examples from across the legal curriculum on the companion website. An improved companion website with increased guidance for revision to allow students to test their progress and further engage with the topics in the book. Clearly written and easy to use, Legal Writing enables students to fully engage with essay and exam writing as a vital foundation to their undergraduate degree.
Legal Writing
by Lisa WebleyLegal Writing guides students comprehensively through this vital legal skill and addresses a range of assessment methods from exam questions to final essays and problem answers. It considers how to deconstruct essay and problem questions and how to conduct and apply legal research to answer set questions. Lisa Webley explains how to reference others' work clearly and correctly, making this book a useful tool for students concerned about issues of plagiarism. It also focuses on how to develop critical thinking and communicate legal arguments, with both good and bad examples of written work considered and discussed in the text. Legal Writing is particularly useful for undergraduate students, especially at the beginning of degree studies, and for GDL and CPE students too. This fully revised fourth edition includes: Guidance on the avoidance of plagiarism including examples of poor practice and best practice. Worked examples throughout the text, including guidance on deciphering essay questions in exams and coursework, along with additional examples from across the legal curriculum on the companion website. An improved companion website with increased guidance for revision to allow students to test their progress and further engage with the topics in the book. Clearly written and easy to use, Legal Writing enables students to fully engage with essay and exam writing as a vital foundation to their undergraduate degree.
Legal Writing
by Lisa WebleyLegal Writing guides students comprehensively through this vital legal skill and addresses a range of assessment methods from exam questions to final essays and problem answers. It considers how to deconstruct essay and problem questions and how to conduct and apply legal research to answer set questions. Lisa Webley explains how to reference others’ work clearly and correctly, making this book a useful tool for students concerned about issues of plagiarism. Legal Writing also focuses on how to develop critical thinking and communicate legal arguments, with both good and bad examples of written work considered and discussed in the text. Legal Writing is particularly useful for undergraduate students, especially at the beginning of degree studies, as well as for those preparing for the SQE exams. This fully revised fifth edition includes: Guidance on how to avoid plagiarism, including examples of the best and worst practices Worked examples throughout the text, including how to decipher essay questions in exams and coursework An expanded set of accompanying digital learning resources with increased guidance for revision to allow students to test their progress and further engage with the topics in the book. Clearly written and easy to use, Legal Writing enables students to fully engage with essay and exam writing as a vital foundation to their undergraduate degree.
Legal Writing
by Lisa WebleyLegal Writing guides students comprehensively through this vital legal skill and addresses a range of assessment methods from exam questions to final essays and problem answers. It considers how to deconstruct essay and problem questions and how to conduct and apply legal research to answer set questions. Lisa Webley explains how to reference others’ work clearly and correctly, making this book a useful tool for students concerned about issues of plagiarism. Legal Writing also focuses on how to develop critical thinking and communicate legal arguments, with both good and bad examples of written work considered and discussed in the text. Legal Writing is particularly useful for undergraduate students, especially at the beginning of degree studies, as well as for those preparing for the SQE exams. This fully revised fifth edition includes: Guidance on how to avoid plagiarism, including examples of the best and worst practices Worked examples throughout the text, including how to decipher essay questions in exams and coursework An expanded set of accompanying digital learning resources with increased guidance for revision to allow students to test their progress and further engage with the topics in the book. Clearly written and easy to use, Legal Writing enables students to fully engage with essay and exam writing as a vital foundation to their undergraduate degree.
Legal Writing in Plain English, Second Edition: A Text with Exercises (Chicago Guides to Writing, Editing, and Publishing)
by Bryan A. GarnerAdmirably clear, concise, down-to-earth, and powerful—all too often, legal writing embodies none of these qualities. Its reputation for obscurity and needless legalese is widespread. Since 2001 Bryan A. Garner’s Legal Writing in Plain English has helped address this problem by providing lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. Now the leading guide to clear writing in the field, this indispensable volume encourages legal writers to challenge conventions and offers valuable insights into the writing process that will appeal to other professionals: how to organize ideas, create and refine prose, and improve editing skills. Accessible and witty, Legal Writing in Plain English draws on real-life writing samples that Garner has gathered through decades of teaching experience. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting, and the book’s principles are reinforced by sets of basic, intermediate, and advanced exercises in each section. In this new edition, Garner preserves the successful structure of the original while adjusting the content to make it even more classroom-friendly. He includes case examples from the past decade and addresses the widespread use of legal documents in electronic formats. His book remains the standard guide for producing the jargon-free language that clients demand and courts reward.
Legal Writing in Plain English, Second Edition: A Text with Exercises (Chicago Guides to Writing, Editing, and Publishing)
by Bryan A. GarnerAdmirably clear, concise, down-to-earth, and powerful—all too often, legal writing embodies none of these qualities. Its reputation for obscurity and needless legalese is widespread. Since 2001 Bryan A. Garner’s Legal Writing in Plain English has helped address this problem by providing lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. Now the leading guide to clear writing in the field, this indispensable volume encourages legal writers to challenge conventions and offers valuable insights into the writing process that will appeal to other professionals: how to organize ideas, create and refine prose, and improve editing skills. Accessible and witty, Legal Writing in Plain English draws on real-life writing samples that Garner has gathered through decades of teaching experience. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting, and the book’s principles are reinforced by sets of basic, intermediate, and advanced exercises in each section. In this new edition, Garner preserves the successful structure of the original while adjusting the content to make it even more classroom-friendly. He includes case examples from the past decade and addresses the widespread use of legal documents in electronic formats. His book remains the standard guide for producing the jargon-free language that clients demand and courts reward.
Legal Writing in Plain English, Second Edition: A Text with Exercises (Chicago Guides to Writing, Editing, and Publishing)
by Bryan A. GarnerAdmirably clear, concise, down-to-earth, and powerful—all too often, legal writing embodies none of these qualities. Its reputation for obscurity and needless legalese is widespread. Since 2001 Bryan A. Garner’s Legal Writing in Plain English has helped address this problem by providing lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. Now the leading guide to clear writing in the field, this indispensable volume encourages legal writers to challenge conventions and offers valuable insights into the writing process that will appeal to other professionals: how to organize ideas, create and refine prose, and improve editing skills. Accessible and witty, Legal Writing in Plain English draws on real-life writing samples that Garner has gathered through decades of teaching experience. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting, and the book’s principles are reinforced by sets of basic, intermediate, and advanced exercises in each section. In this new edition, Garner preserves the successful structure of the original while adjusting the content to make it even more classroom-friendly. He includes case examples from the past decade and addresses the widespread use of legal documents in electronic formats. His book remains the standard guide for producing the jargon-free language that clients demand and courts reward.
Legal Writing in Plain English, Second Edition: A Text with Exercises (Chicago Guides to Writing, Editing, and Publishing)
by Bryan A. GarnerAdmirably clear, concise, down-to-earth, and powerful—all too often, legal writing embodies none of these qualities. Its reputation for obscurity and needless legalese is widespread. Since 2001 Bryan A. Garner’s Legal Writing in Plain English has helped address this problem by providing lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. Now the leading guide to clear writing in the field, this indispensable volume encourages legal writers to challenge conventions and offers valuable insights into the writing process that will appeal to other professionals: how to organize ideas, create and refine prose, and improve editing skills. Accessible and witty, Legal Writing in Plain English draws on real-life writing samples that Garner has gathered through decades of teaching experience. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting, and the book’s principles are reinforced by sets of basic, intermediate, and advanced exercises in each section. In this new edition, Garner preserves the successful structure of the original while adjusting the content to make it even more classroom-friendly. He includes case examples from the past decade and addresses the widespread use of legal documents in electronic formats. His book remains the standard guide for producing the jargon-free language that clients demand and courts reward.
Legal Writing in Plain English, Third Edition: A Text with Exercises (Chicago Guides to Writing, Editing, and Publishing)
by Bryan A. GarnerThe leading guide to clear writing—and clear thinking—in the legal profession for more than two decades, now newly updated. Admirably clear, concise, down-to-earth, and powerful—all too often, legal writing embodies none of these qualities. Its reputation for obscurity and needless legalese is widespread. Since 2001, Bryan A. Garner’s Legal Writing in Plain English has helped address this problem by providing lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. Now the leading guide to clear writing in the field, this indispensable volume encourages legal writers to challenge conventions and offers valuable insights into the writing process: how to organize ideas, create and refine prose, and improve editing skills. Accessible and witty, Legal Writing in Plain English draws on real-life writing samples that Garner has gathered through decades of teaching experience. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting, and the book’s principles are reinforced by sets of basic, intermediate, and advanced exercises in each section. For this third edition, Garner has retained the structure of the previous versions, with updates and new material throughout. There are new sections on making your writing vivid and concrete and on using graphics to enhance your argument. The coverage and examples of key topics such as achieving parallelism, avoiding legalese, writing effective openers and summaries, and weaving quotations into your text have also been expanded. And the sample legal documents and exercises have been updated, while newly added checklists provide quick summaries of each section. Altogether, this new edition will be the most useful yet for legal professionals and students seeking to improve their prose.
Legal Writing in Plain English, Third Edition: A Text with Exercises (Chicago Guides to Writing, Editing, and Publishing)
by Bryan A. GarnerThe leading guide to clear writing—and clear thinking—in the legal profession for more than two decades, now newly updated. Admirably clear, concise, down-to-earth, and powerful—all too often, legal writing embodies none of these qualities. Its reputation for obscurity and needless legalese is widespread. Since 2001, Bryan A. Garner’s Legal Writing in Plain English has helped address this problem by providing lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. Now the leading guide to clear writing in the field, this indispensable volume encourages legal writers to challenge conventions and offers valuable insights into the writing process: how to organize ideas, create and refine prose, and improve editing skills. Accessible and witty, Legal Writing in Plain English draws on real-life writing samples that Garner has gathered through decades of teaching experience. Trenchant advice covers all types of legal materials, from analytical and persuasive writing to legal drafting, and the book’s principles are reinforced by sets of basic, intermediate, and advanced exercises in each section. For this third edition, Garner has retained the structure of the previous versions, with updates and new material throughout. There are new sections on making your writing vivid and concrete and on using graphics to enhance your argument. The coverage and examples of key topics such as achieving parallelism, avoiding legalese, writing effective openers and summaries, and weaving quotations into your text have also been expanded. And the sample legal documents and exercises have been updated, while newly added checklists provide quick summaries of each section. Altogether, this new edition will be the most useful yet for legal professionals and students seeking to improve their prose.
Legalising Mitochondrial Donation
by Rebecca Dimond Neil StephensIn 2015 the UK became the first country in the world to legalise mitochondrial donation, a controversial germ line reproductive technology to prevent the transmission of mitochondrial disease. Dimond and Stephens track the intense period of scientific and ethical review, public consultation and parliamentary debates preceeding the decision. They draw on stakeholder accounts and public documents to explore how patients, professionals, institutions and publics mobilised within ‘for’ and ‘against’ clusters, engaging in extensive promissory, emotional, bureaucratic, ethical, embodied and clinical labour to justify competing visions of an ethical future. They describe how this decision is the latest iteration of a UK sociotechnical imaginary in which the further liberalization of human embryo research and use is rendered legitimate and ethical through modes of consultation and permissive but strictly regulated licensing. Overall, this book presents a timely, multi-dimensional, and sociological account of a globally significant landmark in the history of human genetics, and will be relevant to those with an interest in genetics, Science, Technology and Society, the sociology of medicine, reproductive technology, and public policy debate.
Legalising Prostitution in Thailand: A Policy-Oriented Examination of the (De-)Construction of Commercial Sex (SpringerBriefs in Sociology)
by Jason HungThis book problematises the socioeconomic and institutional construction of prostitution in Thai contexts, identifying the root causes that propel underprivileged, discriminated and deprived women and girls to enter the sex industry. The author considers Thailand’s tolerance of prostitution and sex trafficking, despite criminalising prostitution since 1960. In doing so, they explain how criminalising prostitution does not lower the odds of women and girls engaging in commercial sex, but rather, legally marginalises them from receiving the necessary social and healthcare support. The book highlights that neither can Thailand pragmatically practice a zero-tolerance stance against prostitution - primarily due to severe police corruption and its heavy reliance on the sex tourism economy to support the national economic growth - nor is Thailand willing to fully crack down on the domestic sex industry. Engaging in an evaluation of how legalising and decriminalising prostitution, along with continuing to implement policies and interventions that alleviate the root causes of prostitution, can help Thailand build a more inclusive society and less-prostitution-reliant economy in the long term, the book provides a nuanced understanding of the relationships between society, inequality, governance, criminality, and policy in Southeast Asian contexts. It is relevant to students and researchers in sociology, socio-criminology, public policy, government and Southeast Asian studies.
Legalism: Community and Justice (Legalism)
by Fernanda Pirie and Judith Scheele'Community' and 'justice' recur in anthropological, historical, and legal scholarship, yet as concepts they are notoriously slippery. Historians and lawyers look to anthropologists as 'community specialists', but anthropologists often avoid the concept through circumlocution: although much used (and abused) by historians, legal thinkers, and political philosophers, the term remains strikingly indeterminate and often morally overdetermined. 'Justice', meanwhile, is elusive, alternately invoked as the goal of contemporary political theorizing, and wrapped in obscure philosophical controversy. A conceptual knot emerges in much legal and political thought between law, justice, and community, but theories abound, without any agreement over concepts. The contributors to this volume use empirical case studies to unpick threads of this knot. Local codes from Anglo-Saxon England, north Africa, and medieval Armenia indicate disjunctions between community boundaries and the subjects of local rules and categories; processes of justice from early modern Europe to eastern Tibet suggest new ways of conceptualizing the relationship between law and justice; and practices of exile that recur throughout the world illustrate contingent formulations of community. In the first book in the series, Legalism: Anthropology and History, law was addressed through a focus on local legal categories as conceptual tools. Here this approach is extended to the ideas and ideals of justice and community. Rigorous cross-cultural comparison allows the contributors to avoid normative assumptions, while opening new avenues of inquiry for lawyers, anthropologists, and historians alike.
Legalism: Property and Ownership (Legalism)
by Georgy Kantor, Tom Lambert and Hannah SK OdaIn this volume, ownership is defined as the simple fact of being able to describe something as 'mine' or 'yours', and property is distinguished as the discursive field which allows the articulation of attendant rights, relationships, and obligations. Property is often articulated through legalism as a way of thinking that appeals to rules and to generalizing concepts as a way of understanding, responding to, and managing the world around one. An Aristotelian perspective suggests that ownership is the natural state of things and a prerequisite of a true sense of self. An alternative perspective from legal theory puts law at the heart of the origins of property. However, both these points of view are problematic in a wider context, the latter because it rests heavily on Roman law. Anthropological and historical studies enable us to interrogate these assumptions. The articles here, ranging from Roman provinces to modern-day piracy in Somalia, address questions such as: How are legal property regimes intertwined with economic, moral-ethical, and political prerogatives? How far do the assumptions of the western philosophical tradition explain property and ownership in other societies? Is the 'bundle of rights' a useful way to think about property? How does legalism negotiate property relationships and interests between communities and individuals? How does the legalism of property respond to the temporalities and materialities of the objects owned? How are property regimes managed by states, and what kinds of conflicts are thus generated? Property and ownership cannot be reduced to natural rights, nor do they straightforwardly reflect power relations: the rules through which property is articulated tend to be conceptually subtle. As the fourth volume in the Legalism series, this collection draws on common themes that run throughout the first three volumes: Legalism: Anthropology and History, Legalism: Community and Justice, and Legalism: Rules and Categories consolidating them in a framework that suggests a new approach to legal concepts.
Legalism: Rules and Categories (Legalism)
by Judith Scheele Paul DreschMainstream historians in recent decades have often treated formal categories and rules as something to be 'used' by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic errors and categories as an imposition by outside powers or by analysts, leaving a very thin notion of 'practice' as the stuff of social life. Philosophy of an older vintage, as well as the work of scholars such as Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the traditional ground of modern Europe and North America. Not only are different kinds of rules and categories open to examination, but the very notion of a rule can be explored more deeply. This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the Legalism series, this collection draws on common themes that run throughout the first two volumes: Legalism: Anthropology and History and Legalism: Community and Justice, consolidating them in a framework that suggests a new approach to rule-bound systems.
Legalism: Community and Justice (Legalism)
'Community' and 'justice' recur in anthropological, historical, and legal scholarship, yet as concepts they are notoriously slippery. Historians and lawyers look to anthropologists as 'community specialists', but anthropologists often avoid the concept through circumlocution: although much used (and abused) by historians, legal thinkers, and political philosophers, the term remains strikingly indeterminate and often morally overdetermined. 'Justice', meanwhile, is elusive, alternately invoked as the goal of contemporary political theorizing, and wrapped in obscure philosophical controversy. A conceptual knot emerges in much legal and political thought between law, justice, and community, but theories abound, without any agreement over concepts. The contributors to this volume use empirical case studies to unpick threads of this knot. Local codes from Anglo-Saxon England, north Africa, and medieval Armenia indicate disjunctions between community boundaries and the subjects of local rules and categories; processes of justice from early modern Europe to eastern Tibet suggest new ways of conceptualizing the relationship between law and justice; and practices of exile that recur throughout the world illustrate contingent formulations of community. In the first book in the series, Legalism: Anthropology and History, law was addressed through a focus on local legal categories as conceptual tools. Here this approach is extended to the ideas and ideals of justice and community. Rigorous cross-cultural comparison allows the contributors to avoid normative assumptions, while opening new avenues of inquiry for lawyers, anthropologists, and historians alike.
Legalism: Rules and Categories (Legalism)
Mainstream historians in recent decades have often treated formal categories and rules as something to be 'used' by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic errors and categories as an imposition by outside powers or by analysts, leaving a very thin notion of 'practice' as the stuff of social life. Philosophy of an older vintage, as well as the work of scholars such as Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the traditional ground of modern Europe and North America. Not only are different kinds of rules and categories open to examination, but the very notion of a rule can be explored more deeply. This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the Legalism series, this collection draws on common themes that run throughout the first two volumes: Legalism: Anthropology and History and Legalism: Community and Justice, consolidating them in a framework that suggests a new approach to rule-bound systems.
Legalism: Property and Ownership (Legalism)
In this volume, ownership is defined as the simple fact of being able to describe something as 'mine' or 'yours', and property is distinguished as the discursive field which allows the articulation of attendant rights, relationships, and obligations. Property is often articulated through legalism as a way of thinking that appeals to rules and to generalizing concepts as a way of understanding, responding to, and managing the world around one. An Aristotelian perspective suggests that ownership is the natural state of things and a prerequisite of a true sense of self. An alternative perspective from legal theory puts law at the heart of the origins of property. However, both these points of view are problematic in a wider context, the latter because it rests heavily on Roman law. Anthropological and historical studies enable us to interrogate these assumptions. The articles here, ranging from Roman provinces to modern-day piracy in Somalia, address questions such as: How are legal property regimes intertwined with economic, moral-ethical, and political prerogatives? How far do the assumptions of the western philosophical tradition explain property and ownership in other societies? Is the 'bundle of rights' a useful way to think about property? How does legalism negotiate property relationships and interests between communities and individuals? How does the legalism of property respond to the temporalities and materialities of the objects owned? How are property regimes managed by states, and what kinds of conflicts are thus generated? Property and ownership cannot be reduced to natural rights, nor do they straightforwardly reflect power relations: the rules through which property is articulated tend to be conceptually subtle. As the fourth volume in the Legalism series, this collection draws on common themes that run throughout the first three volumes: Legalism: Anthropology and History, Legalism: Community and Justice, and Legalism: Rules and Categories consolidating them in a framework that suggests a new approach to legal concepts.
Legality
by Scott J. ShapiroLegality is a profound work in analytical jurisprudence, the branch of legal philosophy which deals with metaphysical questions about the law. In the twentieth century, there have been two major approaches to the nature of law. The first and most prominent is legal positivism, which draws a sharp distinction between law as it is and law as it might be or ought to be. The second are theories that view law as embedded in a moral framework. Scott Shapiro is a positivist, but one who tries to bridge the differences between the two approaches. In Legality, he shows how law can be thought of as a set of plans to achieve complex human goals. His new “planning” theory of law is a way to solve the “possibility problem”, which is the problem of how law can be authoritative without referring to higher laws.
Legality
by Scott J. ShapiroWhat is law? This question has preoccupied philosophers from Plato to Thomas Hobbes to H. L. A. Hart. Yet many others find it perplexing. How could we possibly know how to answer such an abstract question? And what would be the point of doing so? In Legality, Scott Shapiro argues that the question is not only meaningful but vitally important. In fact, many of the most pressing puzzles that lawyers confront—including who has legal authority over us and how we should interpret constitutions, statutes, and cases—will remain elusive until this grand philosophical question is resolved.Shapiro draws on recent work in the philosophy of action to develop an original and compelling answer to this age-old question. Breaking with a long tradition in jurisprudence, he argues that the law cannot be understood simply in terms of rules. Legal systems are best understood as highly complex and sophisticated tools for creating and applying plans. Shifting the focus of jurisprudence in this way—from rules to plans—not only resolves many of the most vexing puzzles about the nature of law but has profound implications for legal practice as well.Written in clear, jargon-free language, and presupposing no legal or philosophical background, Legality is both a groundbreaking new theory of law and an excellent introduction to and defense of classical jurisprudence.