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Law and Consent: Contesting the Common Sense
by Karla O'ReganConsent is used in many different social and legal contexts with the pervasive understanding that it is, and has always been, about autonomy – but has it? Beginning with an overview of consent’s role in law today, this book investigates the doctrine’s inseparable association with personal autonomy and its effect in producing both idealised and demonised forms of personhood and agency. This prompts a search for alternative understandings of consent. Through an exploration of sexual offences in Antiquity, medical practice in the Middle Ages, and the regulation of bodily harm on the present-day sports field, this book demonstrates that, in contrast to its common sense story of autonomy, consent more often operates as an act of submission than as a form of personal freedom or agency. The book explores the implications of this counter-narrative for the law’s contemporary uses of consent, arguing that the kind of freedom consent is meant to enact might be foreclosed by the very frame in which we think about autonomy itself. This book will be of interest to scholars of many aspects of law, history, and feminism as well as students of criminal law, bioethics, and political theory.
Law and Consent: Contesting the Common Sense
by Karla O'ReganConsent is used in many different social and legal contexts with the pervasive understanding that it is, and has always been, about autonomy – but has it? Beginning with an overview of consent’s role in law today, this book investigates the doctrine’s inseparable association with personal autonomy and its effect in producing both idealised and demonised forms of personhood and agency. This prompts a search for alternative understandings of consent. Through an exploration of sexual offences in Antiquity, medical practice in the Middle Ages, and the regulation of bodily harm on the present-day sports field, this book demonstrates that, in contrast to its common sense story of autonomy, consent more often operates as an act of submission than as a form of personal freedom or agency. The book explores the implications of this counter-narrative for the law’s contemporary uses of consent, arguing that the kind of freedom consent is meant to enact might be foreclosed by the very frame in which we think about autonomy itself. This book will be of interest to scholars of many aspects of law, history, and feminism as well as students of criminal law, bioethics, and political theory.
Law and Democracy in Neil MacCormick's Legal and Political Theory: The Post-Sovereign Constellation (Law and Philosophy Library #93)
by Agustín José Menéndez and John Erik FossumThis volume offers a collection of articles by leading legal and political theorists. Originally intended as a celebration of MacCormick’s work on the occasion of the completion of the four-volume series on Law, State and Practical Reason, it has turned into a homage and salute after MacCormick’s passing. Cast in MacCormick’s reflexive spirit, the book presents a critical reconstruction of the Scottish philosopher’s work, with the aim of revealing the connections between law and democracy in his writings and furthering his insights in each specific field.Neil MacCormick made outstanding contributions to the understanding of law and democracy under conditions of pluralism. His institutional theory of law has elucidated the close connection between the normative character of law as a means of social integration and legal social practices. This has produced a synthesis of the key insights of the legal and political theories of Kelsen, Hart, Alexy and Dworkin, and has broken new ground by undermining the ‘monolithic’ and ‘nation-state’ centered character of standard legal theories.
Law and Economics in Europe: Foundations and Applications (Economic Analysis of Law in European Legal Scholarship #1)
by Klaus MathisThis anthology illustrates how law and economics is developing in Europe and what opportunities and problems – both in general and specific legal fields – are associated with this approach within the legal traditions of European countries. The first part illuminates the differences in the development and reception of the economic analysis of law in the American Common Law system and in the continental European Civil Law system. The second part focuses on the different ways of thinking of lawyers and economists, which clash in economic analysis of law. The third part is devoted to legal transplants, which often accompany the reception of law and economics from the United States. Finally, the fourth part focuses on the role economic analysis plays in the law of the European Union. This anthology with its 14 essays from young European legal scholars is an important milestone in establishing a European law and economics culture and tradition.
The Law and Ethics of Data Sharing in Health Sciences (Perspectives in Law, Business and Innovation)
by Marcelo Corrales Compagnucci Timo Minssen Mark Fenwick Mateo Aboy Kathleen LiddellData sharing – broadly defined as the exchange of health-related data among multiple controllers and processors – has gained increased relevance in the health sciences over recent years as the need and demand for collaboration has increased. This includes data obtained through healthcare provisions, clinical trials, observational studies, public health surveillance programs, and other data collection methods. The practice of data sharing presents several notable challenges, however. Compliance with a complex and dynamic regulatory framework is essential, with the General Data Protection Regulation being a prominent example in a European context. Recent regulatory developments related to clinical trial transparency, trade secrecy, data access, AI training data, and health data spaces further contribute to the difficulties. Simultaneously, government initiatives often encourage scientists to embrace principles of “open data” and “open innovation.”The variety of regulations in this domain has the potential to impede widespread data sharing and hinder innovation. This edited volume, therefore, compiles comparative case studies authored by leading scholars from diverse disciplines and jurisdictions. The book aims to outline the legal complexities of data sharing. By examining real-world scenarios from diverse disciplines and a global perspective, it explores the normative, policy, and ethical dilemmas that surround data sharing in the health sciences today.Chapter Patient Perspectives on Data Sharing, Chapter Supplementary Measures and Appropriate Safeguards for International Transfers of Health Data after Schrems II are available open access under a Creative Commons Attribution 4.0 International License via link.springer.com.
Law and Evil: The Evolutionary Perspective (Elgar Studies in Legal Theory)
by Wojciech ZałuskiLaw and Evil presents an alternative evolutionary picture of man, focusing on the origins and nature of human evil, and demonstrating its useful application in legal-philosophical analyses. Using this representation of human nature, Wojciech Załuski analyses the development of law, which he interprets as moving from evolutionary ethics to genuine ethics, as well as arguing in favour of metaethical realism and ius naturale. Załuski argues that human nature is undoubtedly ambivalent: human beings have been endowed by natural selection with moral, immoral, and neutral tendencies (the first ambivalence), and the moral tendencies themselves are ambivalent (the second ambivalence), giving rise to an inferior form of ethics called ‘evolutionary ethics’. Introducing a novel distinction between two types of evil, primary and secondary, this book explores the differences between evolutionary ethics and genuine ethics in order to analyse the history of legal systems and the controversy between natural law and legal positivism. Engaging and thought-provoking, this insightful book will be vital reading for both legal scholars and philosophers, especially those of law and moral philosophy. Evolutionary biologists with an interest in a philosophical interpretation of the results of evolutionary biology will also find this book an important read.
Law and Government in England during the Long Eighteenth Century: From Consent to Command (Studies in Modern History)
by D. LemmingsOver the long eighteenth century English governance was transformed by large adjustments to the legal instruments and processes of power. This book documents and analyzes these shifts and focuses upon the changing relations between legal authority and the English people.
Law and Irresponsibility: On the Legitimation of Human Suffering
by Scott VeitchLaw is widely assumed to provide contemporary society with its most important means of organizing responsibility. Across a broad range of areas of social life – from the activities of states and citizens, to work, business and private relationships – it is understood that legal regulation plays a crucial role in defining and limiting responsibilities. But Law and Irresponsibility pursues the opposite view: it explores how law organizes irresponsibility. With a particular focus on large-scale harms – including extensive human rights violations, forms of colonialism, and environmental or nuclear devastation – this book analyzes the ways in which law legitimates human suffering by demonstrating how legal institutions operate as much to deflect responsibility for harms suffered as to acknowledge them. Drawing on a series of case studies, it shows not only how law facilitates the dispersal and disavowal of responsibility, but how it does so in consistent and patterned ways. Irresponsibility is organized, and its organization is traced here to the legal forms, and the social and political conditions, that sustain ‘our’ complicity in human suffering. This innovative and interdisciplinary book provides a radical challenge to conventional thinking about law and legal institutions. It will be of considerable interest to those working in law, political and legal theory, sociology and moral philosophy.
Law and Irresponsibility: On the Legitimation of Human Suffering
by Scott VeitchLaw is widely assumed to provide contemporary society with its most important means of organizing responsibility. Across a broad range of areas of social life – from the activities of states and citizens, to work, business and private relationships – it is understood that legal regulation plays a crucial role in defining and limiting responsibilities. But Law and Irresponsibility pursues the opposite view: it explores how law organizes irresponsibility. With a particular focus on large-scale harms – including extensive human rights violations, forms of colonialism, and environmental or nuclear devastation – this book analyzes the ways in which law legitimates human suffering by demonstrating how legal institutions operate as much to deflect responsibility for harms suffered as to acknowledge them. Drawing on a series of case studies, it shows not only how law facilitates the dispersal and disavowal of responsibility, but how it does so in consistent and patterned ways. Irresponsibility is organized, and its organization is traced here to the legal forms, and the social and political conditions, that sustain ‘our’ complicity in human suffering. This innovative and interdisciplinary book provides a radical challenge to conventional thinking about law and legal institutions. It will be of considerable interest to those working in law, political and legal theory, sociology and moral philosophy.
Law and Justice in China's New Marketplace
by Ronald C. KeithLaw and Justice in China's New Marketplace provides the first comprehensive multidisciplinary analysis of the jurisprudence and related law underlying the contemporary Chinese transition to the 'socialist market economy'. New 'pluralized jurisprudence' has moved beyond Marxist class analysis to consider a new balance of values relating to economic efficiency and social justice in the marketplace, and yet the interior debates and perspectives concerning these values are virtually unknown in the Western scholarly literature. By analysing the changing Chinese approach in law to the adjustment of social interests in the context of profound economic change , Law and Justice in China's New Marketplace provides a unique reference tool. It outlines the new vocabulary of market jurisprudence and law and examines new legal thinking on rights protection with reference to widely ranging and often hot internal debate over human rights, property law and procedural or judicial justice.
Law and Legitimacy in the Supreme Court
by Richard H. Fallon Jr.Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy. Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate. Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.
Law and Legitimacy in the Supreme Court
by Richard H. Fallon Jr.Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy. Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate. Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.
Law and Life. Why Law?
by Peter van SchilfgaardeThis book is based on the assumption that the world is governed by a widespread field of interconnected laws. In this field man-made laws – legal laws - have to coexist with the laws of nature, the laws of science and the laws of logic. They have to find their place in relation to a certain society. They have to relate to the demands of morality, ethics, custom and trust. They have to follow the laws of language. They have to deal with a variety of professional and esthetic rules. They have to defend their position between art and craft. Finally, and significantly, they have to cope with a host of different ideas about truth. This book approaches law as a human construct meant to strengthen society as it develops through the ages. Knowledge of the law – legal knowledge – is of doubtful value if it ignores the demands and ideals of society. The same goes for the thinking leading to legal knowledge.This book focuses on a basic concept. That concept is met if the legal thinking, leading to legal knowledge, reaches the level of an independent, law and society oriented, contemplative discipline. A discipline which is in that sense and to that extent in touch with - cherished or less cherished - parts of given law.
Law and Marxism: A General Theory
by Evgeny PashukanisThis is a classic Marxist study first published in 1924 - one of the principal Soviet contributions to jurisprudence theory. It is an authoritative non-revisionist text offering both a commentary and a critique of prevailing Marxist and non-Marxist legal theory. Pashukanis states that juridical and state forms are linked to a specific type of class society - capitalist society. However, law comes not from the rule of the capitalist class but from the relations of production that created that class. Rights and laws are exchanged like commodities.*BR**BR*The author applies Marx's writings on contract and property law, giving sensitive attention to the interrelation of commodity values and individual rights. He considers the ritual, pomp and mystique of legal systems, and looks at law in relation to power structures, the state, exploitation, and morality.
Law and Marxism: A General Theory
by Evgeny PashukanisThis is a classic Marxist study first published in 1924 - one of the principal Soviet contributions to jurisprudence theory. It is an authoritative non-revisionist text offering both a commentary and a critique of prevailing Marxist and non-Marxist legal theory. Pashukanis states that juridical and state forms are linked to a specific type of class society - capitalist society. However, law comes not from the rule of the capitalist class but from the relations of production that created that class. Rights and laws are exchanged like commodities.*BR**BR*The author applies Marx's writings on contract and property law, giving sensitive attention to the interrelation of commodity values and individual rights. He considers the ritual, pomp and mystique of legal systems, and looks at law in relation to power structures, the state, exploitation, and morality.
Law and Objectivity
by Kent GreenawaltIn modern times the idea of the objectivity of law has been undermined by skepticism about legal institutions, disbelief in ideals of unbiased evaluation, and a conviction that language is indeterminate. Greenawalt here considers the validity of such skepticism, examining such questions as: whether the law as it exists provides determinate answers to legal problems; whether the law should treat people in an "objective way," according to abstract rules, general categories, and external consequences; and how far the law is anchored in something external to itself, such as social morality, political justice, or economic efficiency. In the process he illuminates the development of jurisprudence in the English-speaking world over the last fifty years, assessing the contributions of many important movements.
Law and Opinion in Twentieth-Century Britain and Ireland
by W. Morgan S. LivingstoneLaw and Opinion in Twentieth Century Britain and Ireland covers four main themes: Law and the State; Culture and Identity; Public Morality and the Citizen; The Death of the English Constitution; each theme being analyzed through two essays authored by leading British and Irish academics. The book provides a substantial and readable analysis of the relationship between law and opinion in Britain and Ireland, with a special focus on the question of culture, identity and the state.
Law and Philosophy of Language: Ordinariness of Law (Routledge Research in Constitutional Law)
by Pascal RichardAcademic legal production, when it focuses on the study of law, generally grasps this concept on the basis of a reference to positive law and its practice. This book differs clearly from these analyses and integrates the legal approach into the philosophy of normative language, philosophical realism and pragmatism. The aim is not only to place the examination of law in the immanence of its practice, but also to take note of the fact that legal enunciation must be taken seriously. In order to arrive at this analysis, it is necessary to go beyond traditional perspectives and to base reflection on an investigation of the conditions for enunciating law in our democracies. This analysis thus offers a renewal of the ethics inherent in the action of jurists and an original reflection on the role of certain legal tools such as concepts, categories, or "provisions". In this sense, the work nourishes its originality not only by the transversality of its approach, but also by the will to situate legal thought in concrete forms of its implementation. The book will be essential reading for academics working in the areas of legal theory, legal philosophy and constitutional theory.
Law and Philosophy of Language: Ordinariness of Law (Routledge Research in Constitutional Law)
by Pascal RichardAcademic legal production, when it focuses on the study of law, generally grasps this concept on the basis of a reference to positive law and its practice. This book differs clearly from these analyses and integrates the legal approach into the philosophy of normative language, philosophical realism and pragmatism. The aim is not only to place the examination of law in the immanence of its practice, but also to take note of the fact that legal enunciation must be taken seriously. In order to arrive at this analysis, it is necessary to go beyond traditional perspectives and to base reflection on an investigation of the conditions for enunciating law in our democracies. This analysis thus offers a renewal of the ethics inherent in the action of jurists and an original reflection on the role of certain legal tools such as concepts, categories, or "provisions". In this sense, the work nourishes its originality not only by the transversality of its approach, but also by the will to situate legal thought in concrete forms of its implementation. The book will be essential reading for academics working in the areas of legal theory, legal philosophy and constitutional theory.
Law and Politics: A Dilemma for Contemporary Legal Theory
by Mauro ZamboniThis book reconstructs and classifies, according to ideal-typical models, the different positions taken by the major contemporary legal theories as to whether and how law relates to politics. It presents a possible explanation as to why different legal theories, though often reaching diametric results, somehow must still begin from common basic points.
The Law and Politics of Inclusion: From Rights to Practices of Disidentification
by Valeria VendittiOn the one hand, inclusion constitutes a powerful framework of political agency, as people can gain access to forms of recognition granting legal protection and social visibility. On the other hand, inclusion requires their adherence to fixed matrices incorporating specific and limited forms of life. This opposition reflects a similar division within the academic field: between liberal advocates of inclusion and those who regard it as a form of assimilation, where differences are absorbed and tempered. Uncovering the deficiencies in both viewpoints, this book analyzes inclusion by attending to the active role of subjects looking for inclusion, and mobilizing inclusive processes. Inclusion is thus reconceived as an ongoing, engaging movement of category-production, according to which there is no straightforward opposition between effective inclusion and assimilation. The book thus draws the idea of inclusion out of this opposition in order to delineate a form of political connectedness based on smaller social networks of solidarity that, although entailing some sort of normativity, are nevertheless characterized by fluidity and proximity. In this way, inclusion comes to be more productively, and more plausibly, reframed: as a web in which inclusive processes appear as moments of the renegotiation and rearticulation of a subjectivity in constant flux.
The Law and Politics of Inclusion: From Rights to Practices of Disidentification
by Valeria VendittiOn the one hand, inclusion constitutes a powerful framework of political agency, as people can gain access to forms of recognition granting legal protection and social visibility. On the other hand, inclusion requires their adherence to fixed matrices incorporating specific and limited forms of life. This opposition reflects a similar division within the academic field: between liberal advocates of inclusion and those who regard it as a form of assimilation, where differences are absorbed and tempered. Uncovering the deficiencies in both viewpoints, this book analyzes inclusion by attending to the active role of subjects looking for inclusion, and mobilizing inclusive processes. Inclusion is thus reconceived as an ongoing, engaging movement of category-production, according to which there is no straightforward opposition between effective inclusion and assimilation. The book thus draws the idea of inclusion out of this opposition in order to delineate a form of political connectedness based on smaller social networks of solidarity that, although entailing some sort of normativity, are nevertheless characterized by fluidity and proximity. In this way, inclusion comes to be more productively, and more plausibly, reframed: as a web in which inclusive processes appear as moments of the renegotiation and rearticulation of a subjectivity in constant flux.
Law and Reflexive Politics (Law and Philosophy Library #35)
by E.A. ChristodoulidisLaw is the great concealer; and law is everywhere. Or so claimed Marxists once upon a time. [Law] was imbricated within the mode of production and productive relations themselves . . . it intruded brusquely within alien categories, re-appearing bewigged and gowned in the form of ideology; . . . it was an arm of politics and politics was one of its arms; it was an academic discipline, subjected to the rigour of its own autonomous logic, it contributed to the definition of the self-identity of both the rulers 1 and the ruled. Does the old critique of domination still hold any sway? Apparently not. Or so even scholars of the far Left keep reminding us in their eagerness to embrace law and proclaim their allegiance to the new constitutional politics of civil society. Old Marxists now describe popular sovereignty as 'co-original' with, and democracy 'internally linked' to 2 constitutional rights and find it hard to remember what it was they once disagreed with liberals about. No tension left between emancipatory politics and oppressive law; instead we have reciprocal constitution, simultaneous realisation. In the Left's embracing of the new constitutionalisms its old critique of law - the critique of the law's concealment of class inequality, class conflict and class action - is left behind.
Law and the Christian Tradition in Modern Russia (Law and Religion)
by Paul Valliere and Randall A. PooleThis book, authored by an international group of scholars, focuses on a vibrant central current within the history of Russian legal thought: how Christianity, and theistic belief generally, has inspired the aspiration to the rule of law in Russia, informed Russian philosophies of law, and shaped legal practices. Following a substantial introduction to the phenomenon of Russian legal consciousness, the volume presents twelve concise, non-technical portraits of modern Russian jurists and philosophers of law whose thought was shaped significantly by Orthodox Christian faith or theistic belief. Also included are chapters on the role the Orthodox Church has played in the legal culture of Russia and on the contribution of modern Russian scholars to the critical investigation of Orthodox canon law. The collection embraces the most creative period of Russian legal thought—the century and a half from the later Enlightenment to the Russian emigration following the Bolshevik Revolution. This book will merit the attention of anyone interested in the connections between law and religion in modern times.
Law and the Christian Tradition in Modern Russia (Law and Religion)
by Paul Valliere Randall A. PooleThis book, authored by an international group of scholars, focuses on a vibrant central current within the history of Russian legal thought: how Christianity, and theistic belief generally, has inspired the aspiration to the rule of law in Russia, informed Russian philosophies of law, and shaped legal practices. Following a substantial introduction to the phenomenon of Russian legal consciousness, the volume presents twelve concise, non-technical portraits of modern Russian jurists and philosophers of law whose thought was shaped significantly by Orthodox Christian faith or theistic belief. Also included are chapters on the role the Orthodox Church has played in the legal culture of Russia and on the contribution of modern Russian scholars to the critical investigation of Orthodox canon law. The collection embraces the most creative period of Russian legal thought—the century and a half from the later Enlightenment to the Russian emigration following the Bolshevik Revolution. This book will merit the attention of anyone interested in the connections between law and religion in modern times.