Over the last several decades legal scholars have plumbed law's rhetorical life. Scholars have done so under various rubrics, with law and literature being among the most fruitful venues for the exploration of law's rhetoric and the way rhetoric shapes law. Today, new approaches are shaping this exploration. Among the most important of these approaches is the turn toward history and toward what might be called an 'embedded' analysis of rhetoric in law. Historical and embedded approaches locate that analysis in (...) particular contexts, seeking to draw our attention to how the rhetorical dimensions of legal life works in those contexts. Rhetorical Processes and Legal Judgments seeks to advance that mode of analysis and also to contribute to the understanding of the rhetorical structure of judicial arguments and opinions. (shrink)

This article addresses the pressing issue of what process courts should use to identify those questions whose resolution lies beyond their appropriate capacity and legitimacy. The search for such a process is a basic constitutional problem that has defied a clear answer for well over a hundred years. The chequered history of earlier attempts illustrates why commentators have once again begun to gravitate towards institutional approaches. The general features of institutional approaches include emphasis on uncertainty, judicial fallibility, (...) systemic impact, collaboration between branches of government and incrementalism in judging. These features, however, are relied upon in support of two conflicting views of the role of judges in public law adjudication. One is restrictive, and advocates sharp limitations to the ambit of judicial review. The other is contextual, and, in stark contrast, it proposes to expand the ambit of review in reliance on the idea of using principles of restraint to structure the exercise of judicial discretion. While this article does not take sides between them, it nonetheless seeks to refine the contextual institutional approach by outlining a general framework for reasoning with principles of restraint, and by addressing some of the key difficulties such a reasoning process would face. (shrink)

Constitutional and judicial law-making is increasingly beginning to find its reflection not only in the Anglo-Saxon, but also in the Romano-Germanic legal family. However, the prerequisites for the use of this legal instrument are different, which determines the relevance of conducting a comparative analysis regarding the provision of such a mechanism in the USA and Kazakhstan. The purpose of the research is to identify common and distinctive features in the process of implementation of constitutional and judicial law-making (...) in countries belonging to different legal systems. The article uses the methods of analysis, synthesis, comparison, deduction and generalization. As a result, the specificity of ensuring the mechanism of constitutional law-making in the USA was expressed, taking into account various forms of law-making activity. It has been established that the development of constitutional provisions in the United States takes place with the help of the constitutional doctrines of the Supreme Court of the United States, which provide for the introduction of amendments to constitutional provisions without a formal procedure. As a result of the study of the experience of Kazakhstan, it was established that special priority was given to the role of precedent, in particular, the decision of the Supreme Court of the Republic of Kazakhstan. This is explained by the integrative nature of the Romano-Germanic legal system, which allows effective development of national legislation as a whole and its provisions. The obtained results can be used during the professional training of judges in the Republic of Kazakhstan. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with (...) judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes and to reinterpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in "normal" times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crises. This history illustrates that courts have rejected both of the two polar positions that characterize public (...) discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks, if any, should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in the United States during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress, as well as the executive, has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers. (shrink)

How can dispute records shed light on the study of dispute settlement processes and their social and political underpinnings? This volume addresses this question by investigating the interplay between record-making, disputing process, and the social and political contexts of conflicts. The authors make use of exceptionally rich charter materials from the Iberian Peninsula, Italy, and Scandinavia, including different types of texts directly and indirectly related to conflicts, in order to contribute to a comparative survey of early medieval dispute records (...) and to a better understanding of the interplay between judicial and other less formal modes of conflict resolution. Contributors are Isabel Alfonso, José M. Andrade, François Bougard, Warren C. Brown, Wendy Davies, Julio Escalona, Kim Esmark, Adam J. Kosto, Juan José Larrea, André Evangelista Marques, Josep M. Salrach, Igor Santos Salazar, and Francesca Tinti. (shrink)

This article recognizes that linguistic prejudice (with its associated cultural biases) is a reality in any multilingual country, including South Africa. Prejudice is inherently human and the article suggests that it can be both positive and negative. In the case of the Senzo Meyiwa murder trial the article suggests that the linguistic prejudice experienced by witnesses and legal practitioners was largely negative. Even though the South African Constitution suggests an empowering multilingual environment where there are now twelve official languages, in (...) contrast to this, the article takes as a point of departure the monolingual language of record policy that has been in place in the South African legal system since 2017. This is contrary to the constitutional imperatives. It is argued that this policy negatively impacts witnesses and legal practitioners and that the Meyiwa trial is a case in point. It is found that in this trial there is linguistic prejudice (practiced by the presiding judge) where there are linguistic or cultural voids related to communicative inequality and where the speaker does not have sufficient English vocabulary to proceed. It is concluded that the interpretation process also has its challenges and that ideally the use of African languages as languages of record in courts could only aid the delivery of social justice and the implementation of language rights in a multilingual and multicultural country such as South Africa. (shrink)

The discussion on symbolic legislation unveils intriguing relationships between law and politics. However, the abundance of observations often results in conceptual chaos and raises numerous problematic questions. These inquiries revolve around the scope of the concept of symbolic legislation (is it a marginal or universal phenomenon in the legal system?), as well as the circumstances determining whether a provision or legal act is classified as symbolic legislation. Of particular interest is the question of whether a provision or legal act can (...) “become symbolic” over time. The research goal of this study is to analyse the process of “becoming symbolic” and derive conclusions that deepen the understanding of the phenomenon of symbolic legislation. This study organises the current discussion on symbolic legislation, focusing on a case study of the structure of the crime of animal abuse in the Polish Animal Protection Act. The author illustrates how certain elements of this provision “became symbolic,” demonstrating that this process is largely independent of the motives of the legislators. In conclusion, the author emphasises the importance of consistently separating the sphere of motives from the sphere of effects in the discussion on symbolic legislation. Furthermore, the author highlights the static nature of the former and the dynamic nature of the latter. (shrink)

Throughout the medieval period law was seen as the product of social groups and associations that formed legal orders, as Max Weber elaborates, "either constituted in its membership by such objective characteristics of birth, political, ethnic, or religious denomination, mode of life or occupation, or arose through the process of explicit fraternization." During the second half of the Middle Ages, roughly the tenth through fifteenth centuries, there were "several distinct types of law, sometimes competing, occasionally overlapping, invariably invoking different (...) traditions, jurisdictions and modes of operation." Types of law included imperial and royal edicts and statutes, canon law, unwritten customary law of tribes and localities, written Germanic law, residual Roman law, municipal statutes, the law of merchants and of guilds, and in England the common law, on the continent the Roman law of jurists after the twelfth century revival of the Justinian Code. The types of courts included various imperial and royal courts, ecclesiastical courts, manorial or seigniorial courts, village courts, municipal courts in cities, merchant courts, and guild courts. Serving as judges in these courts, respectively, were kings or their appointees, Bishops and abbots, barons or lords of the manor or their appointees, local lay leaders, leading burghers, merchants, and members of the guild. These various positions were not wholly separate-many high government officials were in religious orders, while Churches held landed estates that came with local judicial responsibilities. "Bishops, abbots and prioresses, as lords of temporal possessions, controlled manorial or honorial courts at which they sometimes, though not generally, presided in person, exercising responsibility for criminal and customary law." "The result was the existence of numerous law communities," Weber wrote, "the autonomous jurisdictions of which overlapped, the compulsory, political association being only one such autonomous jurisdiction in so far as it existed at all." Jurisdictional rules for judicial tribunals and the laws to be applied related to the persons involved and the subject matter at issue. The personality principle linked law to a person's community or association, and under feudalism property ownership came wrapped together with the right to judge those tied to the property. "Demarcation disputes between these laws and courts were numerous." Jurisdictional conflicts arose especially in relation to ecclesiastical courts, which claimed broad jurisdiction over personal status laws (marriage, divorce, inheritance) and moral crimes, as well as church property and personnel, matters which regularly overlapped with the jurisdiction of other courts. Furthermore, different bodies of law could be applicable in a given court in a given case. "It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, 'It often happened that five mem were present or sitting together, and not one of them had the same law as another.'" In long settled areas, the personal law of communities became local customary law. People living within cities were subject to municipal statutes and customary law on certain matters (penal law, procedural), and the community law to which they were attached. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is (...) that policymaking is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

Illuminates legal reasoning -- and its justification At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of reasoning behind (...) decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power. Explores enduring questions Focusing on work over the past century, the essays address important recurring questions, such as: When a judge or a lawyer reasons to a conclusion about what is legally required in a given case, must he also ask what is morally required? To what extent do a judge's personal, political, or moral biases affect his legal reasoning? What is the impact of such biases? Can all such biases be avoided? Is legal reasoning similar to reasoning in mathematics, logic, and linguistics, the physical sciences, the social sciences, or literature and history? Do formal logical modes of argument play any roles in legal reasoning? Solid coverage, well organized The articles were chosen to present some of the most influential works on the topic, as well as less familiar works that are thought provoking and informative. Each volume also offers a representative range of theoretical approaches to its topic, contains an introduction that locates the subject within the larger framework oftheories of legal reasoning and jurisprudence, and includes bibliographical notes on further readings. Many 19th century legal theorists argued that deduction is the central mode of legal reasoning, and that legal argument is like a deductive proof in mathematics or logic. They were attracted to this "deductivist" concept because it suggested that legal reasoning could be politically and morally neutral. This volume brings together some of the most thought-provoking articles on both sides of the debate. It also contains several leading articles that explain the role of probabilistic judgments and presumptions in various types of legal arguments, including the laws of evidence and criminal procedure. The collection is a solid introduction to the basic modes of logical argument in legal reasoning. (shrink)

Photomechanical reprint of papers from 1970 to 1992 mostly in English, some in German or French: Foreword 1–4; LAW AS PRACTICE ‘La formation des concepts en sciences juridiques’ 7–33, ‘Geltung des Rechts – Wirksamkeit des Rechts’ 35–42, ‘Macrosociological Theories of Law’ 43–76, ‘Law & its Inner Morality’ 77–89, ‘The Law & its Limits’ 91–96; LAW AS TECHNIQUE ‘Domaine »externe« & domaine »interne« en droit’ 99–117, ‘Die ministerielle Begründung’ 119–139, ‘The Preamble’ 141–167, ‘Presumption & Fiction’ 169–185, ‘Legal Technique’187–198; LAW AS LOGIC (...) ‘Moderne Staatlichkeit und modernes formales Recht’ 201–207, ‘Heterogeneity & Validity of Law’ 209–218, ‘Leibniz & die Frage der rechtlichen Systembildung’ 219–232, ‘Law & its Approach as a System’ 233–255, ‘Logic of Law & Judicial Activity’ 258–288, ‘Kelsen’s Pure Theory of Law’ 289–293, ‘The Nature of the Judicial Application of Norms’ 295–314; LAW AS EXPERIENCE ‘The Socially Determined Nature of Legal Reasoning’317–374, ‘The Ontological Foundation of Law’ 375–390, ‘Is Law a System of Enactments?’ 391–398, ‘The Uniqueness of National Legal Cultures’ 399–411, ‘Institutions as Systems’ 413–424; LAW AS HISTORY ‘From Legal Customs to Legal Folkways’ 427–436, ‘Anthropological Jurisprudence?’ 437–457, ‘Law as a Social Issue’ 459–475, ‘Law as History?’477–484, ‘Rechtskultur – Denkkultur’ 485–489; w/ Curriculum Vitae & Bibliography, as well as Index & Indexes of normative materials & of names. (shrink)

Judicial process is an integral part of legal systems. The process rests primarily on established principles of constitutional governance and responsibility. In the last ten years, the dynamism within judicial institutions and the judicial process has gained considerable attention. The dynamism is often viewed in light of the diversity of claims being addressed, the openness of courts to foreign material, and the use of non-legal studies and findings in court proceedings. How one views the (...) judicial process in the traditional sense, and in the light of the new experiences is an important question today. Also, what new theories explain this public sphere of activity? -/- In this regard, Dr. Pathak’s book "Judicial Process" is a noteworthy contribution. The book explores the complex nature of the judicial process, along with its wider constitutional, political, and social relevance. The book builds on an understanding that the judicial process, the courts, and the judges are central to constitutional governance. With that backdrop, it engages with four aspects of the judicial process, including (1) the nature of the judicial process, (2) the engagements and interactions within the judiciary, (3) the engagements and interactions between the courts and other institutions, and (4) the protection of rights and redressal of violations function performed by courts. -/- The book includes a detailed discussion on key concepts, practices, tests, and principles. The following chapters and discussions are particularly interesting. Chapter one involves a jurisprudential take on the subject while referring to the works of Blackstone, Holmes, and Cardozo. Particularly relevant in chapter one are Indian cases that have cited Cardozo while determining important judicial matters. Further, the chapter includes foreign case law which has been cited by the Indian courts to discuss the nature of the judicial process. Chapter three on Judicial Review discusses the scope of judicial review in India and its centralizing force in constitutional governance. The author carefully explores the expansion in a judicial capacity for review. The chapter highlights the dynamism attached to the practice of judicial review, moving from the review of constitutional amendments, to that of laws, administrative actions, and policy. Further, the chapter includes a discussion on the basic structure of the Indian Constitution. Chapter four on Law of Precedent includes a discussion on stare decisis, which the author refers to as a principle conferring legitimacy and stability to the judicial system. Recent scholarship on the nature of obiter dicta of higher courts and persuasive quality of foreign case law in domestic cases has been cited. Chapter five covers the Independence of the Judiciary debates in India. It discusses the issue of post-retirement appointments of judges and recusal from judicial matters. Chapter eight Judicial Activism traces the development of the concept from its early days to the present times. The chapter adopts the five core meanings offered by Keenan Kmiec to substantiate the old and the new avatars of judicial activism. The chapter discusses the role of social action litigation in India and its hand in defining the judiciary as a protector of rights and constitutional values. -/- The book provides sufficient guidance to study the nature of the judicial process. It also makes one curious about the changing nature of the judicial process and the new waves of constitutional ethics and governance. The following are some of the themes not attended to in the book. First, the judgments of the courts. The written judgments constitute an integral part of the judicial process. The judgments constitute public law reaching out to beneficiaries including litigants, people at large, as well as foreign institutions and courts. That being said, a discussion on judgements and the written or unwritten standards governing the same needs attention. Also included in this point is the role of dissenting judgments. How should one view or study dissent in judgments of constitutional significance? A normative framework to study the same is much needed. Second, the tools and indicators to measure judicial impact. The judicial impact can include (a) the impact of judicial decisions on the law, policy, and society (b) the impact of law/legislation on the judicial process, and (c) the impact of technological and scientific advancements on the judicial process. Tools like judicial impact assessment have been widely argued to be important to the working of the courts. Further, parameters to study compliance, policy integration, and the impact of judicial decisions on other state institutions have gained attention. (shrink)

The confirmation process and the virtues of duplicity -- How to be aggressive and passive ... and great -- Recusal and the vices of impartiality -- The use and misuse of the politics of personality -- Fortuna : the role of chance in choosing cases -- When and why to avoid a case -- Carpe diem : when to embrace a case -- Tactical tools : using procedure to one's advantage -- Oral arguments : what to say and how (...) -- When to lose a case and win a cause -- In defense of unprincipled decision making -- How to manipulate the rule of law -- When precedents are to be honored (if only formally) -- When to take command and make demands -- The boldest moves : when and how to make them -- On writing : when style should trump substance -- When it is wise to write a separate opinion -- Law clerks : when and how to use them -- How to play to the media -- Cameras in the courtroom : seizing the future -- On television : the medium is not the message -- On publishing books : when and of what kind -- The threat of impeachment and how best to avoid it -- When it is best to retire -- Directing history : a justice's working papers and what to do with them -- How to best secure an enduring legacy. (shrink)

An account of successive legal theories in England and America against a background of the varieties of natural law in the ancient, medieval and modern worlds. The outcome in Legal Realism provides insight into contemporary issues in law and the judicial process and their relation to moral philosophy. As Levy shows, legal theory has always been inspired by forces outside the law in philosophy and politics. In England the philosophy of Utilitarianism as expounded by Bentham and Austin brought (...) legal positivism into prominence as an alternative to natural law. In the United States the philosophy of pragmatism spearheaded by James and Dewey and shared by Justice Holmes gave the functional turn resulting in the movement of Legal Realism. After sketching the background of varieties of natural law in the ancient, medieval, and modern worlds, Levy presents leading figures and trends in England and the United States. The book is written so as to be intelligible to lawyers, philosophers, and students of cultural history and social science. (shrink)

In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes (...) and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world. (shrink)

This collection reflects the extraordinary career of the man it honors in its variety of subjects and range of scholarship. Mortimer Adler proposes six amendments to the Constitution. Paul Eidelberg surveys the rise of secularism from Socrates to Machiavelli. Hellmut Fritzsche, a physicist, catalogs some famous scientific mistakes. David Grene (Anastaplo's dissertation advisor) looks at Shakespeare's Measure for Measure as "mythological history." Harry V. Jaffa continues a running debate with Anastaplo on how to read the Constitution, James Lehrberger examines Aquinas's (...) views on natural law, Harry Newman argues "The Case Against Politics." Studs Terkel interviews Anastaplo on his encounter with the Illinois bar, and John Van Doren and others contribute a selection of poems. George Anastaplo turned to an academic career when he was denied admission to the bar in 1950 because, on principle, he affirmed the right of revolution and refused to say whether he was a Communist. In this age of academic specialization, Anastaplo's career has been distinguished by a remarkable versatility of thought. Author of five books, including The Artist as Thinker: From Shakespeare to Joyce (Swallow Press, 1983), Human Being and Citizen: Essays on Virtue, Freedom and the Common Good (Swallow Press, 1986), The Constitution of 1787: A Commentary (1989), and The American Moralist: On Law, Ethics, and Government (Ohio University Press, 1992), Anastaplo has also, for the past three decades, produced a steady stream of essays, articles, and papers on subjects from baseball to the Koran, from Socrates to Freud. Volume 2 of Law and Philosophy includes a complete bibliography of his works. (shrink)

This paper examines the strategies for the legitimisation of power in courtroom encounters. It focuses on how discourse becomes the instrument for power and control during the judicial process of witness examination in a Nigerian courtroom context. Legitimisation, as used in this study, therefore, provides more insight into how language use within an institutionalised setting becomes the locus of social interactions designed to achieve specific social goals. Critical Discourse Analysis (CDA) was adopted as the theoretical framework to undergird (...) the description and discussion of the data. The data for this study was drawn from the proceedings of two regional Election Petition Tribunals in South-western and North-eastern Nigeria in 2007 and 2011 respectively. The legal contexts provide the adversarial space for the use of discourse as power and control. The findings reveal that various legitimisation strategies such as confrontational move, circumlocution and pleading forgetfulness along with such traditional strategies as authorisation, moralisation and rationalisation are deployed by the discourse participants to legitimise and delegitimise power in this institutional setting. The paper shows that language is crucial in the judicial process and should be carefully handled so that litigants can have sufficient confidence in the process and be reassured of effective resolution to their legal matters. (shrink)

This book focuses on the political thought of American statesmen. These statesmen have had consistent and comprehensive views of the good of the country and their actions have been informed by those views. The editors argue that political life in America has been punctuated by three great crises in its history-the crisis of the Founding, the crisis of the House Divided, and the crisis of the Great Depression. The Second World War was a crisis not just for America but for (...) the whole of Western Civiliation and, in the wake of that war, a new crisis arose which came to be called the "Cold War." Just when that gave the appearance of being resolved, the world reached a new juncture, a new crisis, which Samuel P. Huntington dubbed the "clash of civiliations." The statesmen having political responsibility in confronting the first three crises in America's history came as close to philosophic grasp of the problems of liberal democracy as one could demand from those embroiled in the active resolution of events. Their reflection of political philosophy in the full sense informed their actions. Since we cannot confidently explain the future, Aristotle warned us to call no man happy while he still lives. Thus the book, in its third edition, keeps to its settled pattern of dealing with settled matters. The preface to the third edition confronts the three later crises and, to the extent consistent with truth, attempts to relate them to the first three. Morton J. Frisch was professor emeritus of political science at Northern Illinois University. He was the author or editor of several books, including Selected Writings and Speeches of Alexander Hamilton; Alexander Hamilton and the Political Order; and Franklin D. Roosevelt: The Contribution of the New Deal to American Political Thought and Practice. Richard G. Stevens retired from National Defense University as professor of political science in 1994. Since then he has taught as an adjunct professor of government at American University. He is co-editor with Matthew J. Franck of Sober as a Judge: The Supreme Court and Republican Liberty, and the author of The American Constitution and Its Provenance; Reason and History in Judicial Judgment: Felix Frankfurter and Due Process; and Political Philosophy: An Introduction. (shrink)

A full discussion on his understanding of rights as "trump cards" which privilege the individual claim over the group policy; the critique of legal positivism; the history of a legal institution according to the analogy of a chain novel; and the insistence upon a theory of adjudication that is both constructive and yet faithful to the deepest intentions of legal documents.

“What characterizes the act of justice is not resort to a court and to judges; it is not the intervention of magistrates. What characterizes the juridical act, the process or the procedure in the broad sense, is the regulated development of a dispute. And the intervention of judges, their opinion or decision, is only ever an episode in this development. What defines the juridical order is the way in which one confronts one another, the way in which one struggles. (...) The rule and the struggle, the rule in the struggle, this is the juridical.” - Michel Foucault Penal Theories and Institutions is the title Michel Foucault gave to the lectures he delivered at the Collège de France from November 1971 to March 1972. In these lectures Michel Foucault presents for the first time his approach to the question of power that will be the focus of his research up to the writing of Discipline and Punish and beyond. His analysis starts with a detailed account of Richelieu’s repression of the Nu-pieds revolt and then goes on to show how the apparatus of power developed by the monarchy on this occasion breaks with the system of juridical and judicial institutions of the Middle Ages and opens out onto a “judicial State apparatus”, a “repressive system”, whose function is focused on the confinement of those who challenge its order. Michel Foucault systemizes the approach of a history of truth on the basis of the study of “juridico-political matrices” that he had begun in the previous year’s lectures and which is at the heart of the notion of “knowledge-power”. In these lectures Foucault develops his theory of justice and penal law. The appearance of this volume marks the end of the publication of the series Foucault’s courses at the Collège de France. (shrink)

“What characterizes the act of justice is not resort to a court and to judges; it is not the intervention of magistrates (even if they had to be simple mediators or arbitrators). What characterizes the juridical act, the process or the procedure in the broad sense, is the regulated development of a dispute. And the intervention of judges, their opinion or decision, is only ever an episode in this development. What defines the juridical order is the way in which (...) one confronts one another, the way in which one struggles. The rule and the struggle, the rule in the struggle, this is the juridical.” - Michel Foucault Penal Theories and Institutions is the title Michel Foucault gave to the lectures he delivered at the Collège de France from November 1971 to March 1972. In these lectures Michel Foucault presents for the first time his approach to the question of power that will be the focus of his research up to the writing of Discipline and Punish (1975) and beyond. His analysis starts with a detailed account of Richelieu’s repression of the Nu-pieds revolt (1639-1640) and then goes on to show how the apparatus of power developed by the monarchy on this occasion breaks with the system of juridical and judicial institutions of the Middle Ages and opens out onto a “judicial State apparatus”, a “repressive system”, whose function is focused on the confinement of those who challenge its order. Michel Foucault systemizes the approach of a history of truth on the basis of the study of “juridico-political matrices” that he had begun in the previous year’s lectures (Lectures on the Will to Know) and which is at the heart of the notion of “knowledge-power”. In these lectures Foucault develops his theory of justice and penal law. The appearance of this volume marks the end of the publication of the series Foucault’s courses at the Collège de France (the first volume of which was published in 1997). (shrink)

In this book, experts from the fields of law and philosophy explore the works of Aristotle to illuminate the much-debated and fascinating relationship between emotions and justice. Emotions matter in connection with democracy and equity – they are relevant to the judicial enforcement of rights, legal argumentation, and decision-making processes in legislative bodies and courts. The decisive role that emotions, feelings and passions play in these processes cannot be ignored – not even by those who believe that emotions have (...) no legitimate place in the public sphere. A growing body of literature on these topics recognizes the seminal insights contributed by Aristotle. This book offers a comprehensive analysis of his thinking in this context, as well as proposals for inspiring dialogues between his works and those written by a selection of modern and contemporary thinkers. As such, the book offers a valuable resource for students of law, philosophy, rhetoric, politics, ethics and history, but also for readers interested in the ongoing debate about legal positivism and the relevance of emotions for legal and political life in today’s world. (shrink)

The possibility now exists of capturing a cradle-to-grave record of everything a person says or does. No longer must a personal history be a partial picture. Technology has made it possible to record, process, store, and retrieve all the text, sounds, and images that are required to paint a complete picture of an individual’s life. The efforts of future historians will be directed more to forgetting than to remembering. By default, society will forget nothing. For almost all of human (...) history, remembering has meant the judicious selection and organization of observations about events and people. There used to be an information frontier beyond which the past was a tabula rasa . That information frontier has gone the way of the dodo. The social memory of events in an individual’s life is not only detailed but permanent. Although physical storage is fallible and changes in technology may make some devices effectively unreadable, these limitations are more than made up for by the negligible cost of duplication and distribution in a network. The record of one’s triumphs and tragedies will haunt one forever. Gone is personal privacy since facts buried in the past can be uncovered at any moment. Gone is personal memory since it is easier to rely on the external social memory of cyberspace. In what follows, we explain these observations and trace their consequences. (shrink)

Recent U.S. Supreme Court decisions regarding the scope of the Establishment Clause have failed to provide a clear framework for determining what government actions are prohibited. Part of the problem concerns what kinds of actions constitute an establishment of religion. What criteria should determine the boundaries of an establishment challenge? Are governmental actions that may only indirectly affect religion (either positively or negatively) prohibited? This article aims to provide a coherent and normatively justified understanding of the Establishment Clause to help (...) answer these questions by considering not just the history of the Clause or the cases the Court has decided under it, but also considering overlaps from various philosophical justifications for the Clause—including justifications from rights theory, political liberalism, utilitarianism, and communitarianism. In the process, the article eliminates from consideration the Supreme Court’s so-called “accommodationist” approach and presents a new understanding of the neutrality test that anchors itself between strict separation and the current neutrality approaches. This it does by also taking into account what in moral theory is known as the doctrine of double effect and by showing how the doctrine further limits the various judicial views to just neutrality in the new sense I suggest, while also providing both clearer and firmer conditions. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:194 HISTORY OF PHILOSOPHY and properly, in a consideration of Bradley, although it is a little like citing Bradley in his own behalf. In all, Mr. Saxena's book is carefully researched and judicious, selecting Bradley's chief metaphysical themes for explication and defence. As one slight criticism: Bradley's doctrine of truth is treated as coherence, which it indeed was on the level of reality; but he dealt with truth quite (...) differently in immediate experience and on the level of appearance (elaborating those levels in his Essays on Truth and Reality), and hia metaphysics would appear richer if those theories of truth were discussed and applied to their appropriate realms. It~J~ Ross Scripps College Filosofia e SLoria nel Pensiero Crociano. By Adriano Bausola. (Milano: SocietA editrici Vitae Pensiero, 1965. Pp. 280. Paper. L. 4~500.) Etica e Politica nel Pensiero dl Benedetto Croce. (Milano: SocietA editrici Vitae Pensiero, 1966. Pp. 265. Paper. L 3,500.) Theee two volumes examine respectively Croce's doctrines of the theoretic and of the practical spheres of experience and thus treat of many of the main tenets of Croce's entire philosophy. For within these spheres, Adriano Bausola critically discusses important views which occur in the areas of logic, gnoseology, theory of history, as well as in ethics, economic and political doctrine. The scope of Bausola's treatment is in accord with Croce's own approach to philosophy, since strictly speaking, neither the theoretic nor the practical sphere can be correctly understood in abstraction from the other. Moreover, in his treatment of Croce's view, Bausola frequently discusses the criticisms of other contemporary Italian Crocean critics,as for example, of Gentile, Guido Calogero and Ugo Spirito, and this method of exposition has the advantages of making Croce's own position clear and of giving us some idea of very recent Italian philosophy. According to Bausola, the essential character of Croce's philosophy is shown in his rejection of every view which admits of transcendent experience or of abstract ideas. Thus, Filosofia e Storia critically traces this rejection as it occurs throughout the theoretic sphere of experience and attempts to make explicit the "positive" Crocean doctrine which accompanies his denial of the transcendent and of the abstract. Here Bausola concludes that despite Croce's claim to the contrary, there is more than one "logical" reason for Croce's refutation of the transcendent. Among these reasons are Croce's view of the identity of subject and object, his refutation of every mediate cognitive process, of every inference, and of every experience which issupposed to be neither theoretic nor practical. Chapter i ol Filosofia c Storia discusses the foundation of Croce's philosophy which Bausola maintains should be described as "spiritualism" (spiritualismo) rather than as "idealism" (idealismo), since for Croce, reality is fundamentally "spirit" and not "pure thought." Chapters 11 and 111 treat specifically of epistemic problems, such as, the nature of philosophic or pure concepts and the judgments to which they give rise, the nature of scientific or pseudoconcepts and the relations between philosophy and science. Chapters IV and v treat of Croce's view of the nature of "the real" and of the relations between the categories---their autonomy and their unity. Here Bausola attempts to show that Croce's transcendental deduction of the four forms of experience (aesthetic, logical, economic and ethical) has failed and that his demonstration shows merely that the distinction between these forms are empirical. Chapter IV then discusses Croce's view of philosophy as history. The next three chapters present a critical analysis of Croce's doctrine of error which forms one of his most interesting contributions to philosophy. Here Bausola's task is not to consist of an explication of the central Crocean view on error, but rather of an examination of its "concrete" development and its validity. At the outset of his discussion, Bausola asks: Does error ever result from non-practical as well as from practical acts? BOOK REVIEWS 195 Does error invariably result from conscious volition? And Bausola tries to show contrary to Croce% view that there are instances of error which do not involve conscious volition, but that Croce% denial of such instances follows... (shrink)

When David Souter was nominated by President Bush to the Supreme Court, he cited John Marshall Harlan as his model. It was an interesting choice. Admired by conservatives and deeply respected by his liberal brethren, Harlan was a man, as Justice William Brennan lamented, whose "massive scholarship" has never been fully recognized. In addition, he was the second Harlan to sit on the Court, following his grandfather--also named John Marshall Harlan. But while his grandfather was an outspoken supporter of reconstruction (...) on a conservative court, the younger Harlan emerged as a critic of the Warren Court's liberal expansion of civil liberties. Now, in the first biography of this important but neglected jurist, Tinsley Yarbrough provides a detailed account of Harlan's life, from his privileged childhood to his retirement and death. Yarbrough examines the forces and events which shaped the Justice's jurisprudence--his early life and often complex family relationships, education at Princeton and Oxford, his work as a prosecutor during Prohibition, Republican Party activities, wartime service in the Army Air Force, and years as one of the nation's preeminent corporate lawyers. The book focuses, however, on Harlan's years on the high bench. Yarbrough weaves together discussions of the Justice's relations with his brethren, clerks, and staff, an examination of Harlan's role in the decision-making process on the Court, and an analysis of his jurisprudence. The Justice's approach to constitutional interpretation exalted precedent, deference to governmental power, and narrow decisions closely tied to case facts; but he also accepted an evolving, creative model of constitutional construction which permitted expansive readings of constitutional rights. Yarbrough's details Harlan's close relationship with Justice Frankfurter, showing how--despite their friendship and alliance--Harlan strongly marked out his own position, both personally and judicially, on the Warren and Burger courts. And he examines the substance and significance of his dissents in such famous cases as Miranda and the Pentagon Papers. Intensively researched, smoothly written, and incisively argued, Yarbrough's biography offers an absorbing account of the life and career of a great dissenter, hailed by admirers as a "lawyer's lawyer" and a "judge's judge." Coming at a time when the high court has begun to adopt many of Harlan's principles, this account provides an essential perspective on the Court, civil liberties, and a pivotal figure in the history of both. (shrink)

This book explores the constitutional, legally binding dimension to legisprudence in the light of the German Federal Constitutional Court's approach to rational lawmaking. Over the last decades this court has been remarkably active in applying legisprudential criteria and standards when reviewing parliamentary laws. It has thus supplied observers with a unique material to analyse the lawmakers' duty to legislate rationally, and to assess the virtues and drawbacks of this strand of judicial control in a constitutional democracy. By bringing together (...) legislation experts and public law scholars to elaborate on 'legisprudence under review', this contributed volume aspires to shed light on the constitutionalisation of rational lawmaking as a controversial trend gaining ground in both national and international jurisdictions. The book is divided into five parts. Part I frames the two key issues pervading the whole collection: the intricate relationship between judicial review and democracy, on the one hand, and the possibility of improving and rationalizing the task of legislation under the current circumstances of politics, on the other. Part II provides an overview of the judicial review of rational lawmaking, laying special emphasis on the duty of legislative justification imposed on lawmakers by the German Constitutional Court. Part III is devoted to the review of the systemic rationality of legislation, in particular to the requirements of legislative consistence and coherence as developed by this court. Contributions in Part IV revolve around the judicial scrutiny of the socio-empirical elements of rational lawmaking, with the control of legislative facts and impacts and the problem of symbolic laws being the central topics. Finally, Part V draws on the German case law to discuss the links between rational lawmaking, balancing and proportionality, and the interdependence between process review and substantive review of legislation. (shrink)

This essay considers the issue of informed consent as it arose in the context of 1960s living kidney donors. In one of the earliest empirical inquiries into informed consent, psychiatrists Carl H. Fellner and John R. Marshall interviewed donors about their decision‐making process and their experience and reflections on donorship. In their much‐cited 1970 paper, the physicians reported that living donors, rather than reaching a reasoned, intellectual, and unemotional decision about donating a kidney (as stipulated in the Ethical Guidelines (...) for Organ Transplantation issued by the American Medical Association's Judicial Council), instead made instantaneous and “irrational” decisions about participation. Fellner and Marshall's studies contributed to the public debate and professional discussion about the moral and ethical dimensions of donorship, even as they challenged the developing consensus on informed consent. (shrink)

German law is commonly assumed to be strongly influenced by legal scholarship. This was certainly true in the past, and this article explores whether it is still the case today. But what is actually meant by ‘influence’ in the context of law? Who exerts it on whom, and how? These questions are analysed in the first part of the article. It is then shown, by drawing on biographical material, legislative history and case law, how legal scholarship contributes to both the (...) legislative and the judicial lawmaking process in Germany—and where it does not. Finally it is asked how the specific relationship between legal academics and lawmakers in the German legal system can be explained and whether this model can be transferred to other systems. (shrink)

Rights of Women attracted much UK media attention in late 2014 by bringing a judicial review that challenged the reduced provisions for family law legal aid available for victims of domestic violence: R v The Lord Chancellor and Secretary of State for Justice [2015] EWHC 35. In June 2015, within Rights of Women’s 40th anniversary year, Hannah Camplin interviewed the organisation’s Director Emma Scott about the decision to bring the judicial review, the advantages and challenges of the (...) class='Hi'>judicial review process, and the experience of strategic litigation within the context of Rights of Women’s long history of campaigning for women’s rights. What emerged is a portrait of a feminist organisation in 2015, and, in a fast changing political and financial landscape, the dual importance of collaborative working and the need for flexibility in service provision and campaigning tools. (shrink)

The Women’s Court is an umbrella term, a common denominator, for a series of initiatives which differ from the mainstream judicial procedures and have been taking place since the early 1990s. These initiatives are not an alternative to the official judiciary systems but aim to supplement, and are therefore complementary to these official systems, especially with a view to transitional justice mechanisms. This text, while focusing on one of those initiatives – established following the violent break-up of Yugoslavia – (...) will contextualize the Women’s Court not only within the recent, short, albeit very significant, history of alternative justice systems, but – importantly for the argument of this text – will also situate this initiative within relevant theoretical concepts of justice. A description of the Women’s Court and its history is followed by locating it within the mainstream concept of justice as well as within feminist and the transitional justice concepts. Finally, returning to this initiative, some key issues are highlighted and assessed, despite the fact that this initiative is still an ongoing process and is therefore understandably difficult to evaluate. (shrink)

The law of the future faces fundamental challenges that it cannot overcome by means of ‘tried and trusted’ dogmatics alone. Nor can it, from a methodological standpoint, take refuge in a purportedly apolitical hermeneutics or a one-sided application of empirical methods. Its responsibilities are not exhausted in mere steering, innovation or stimulating operations, but also encompass critical-emancipatory functions. Methodological reflection and legal critique - understood as social theory in the ‘interior’ of law - enable legal doctrine to meet the particular (...) demands that arise from the simultaneous affiliation of jurisprudence to the systems of law and science. The future development of legal studies thus requires a foundational research approach that preserves the interdisciplinary connection to neighbouring disciplines in the humanities and social sciences, and provides impetus for enlightened self-critique and self-reflection. Only in this way - through the emergence of jurisprudence from its self-incurred ignorance regarding its social function - might legal practice assert itself in everyday legal life and confront the injustices of the legal world with its own thinking. Such critical legal thinking demands more than just the perpetuation of traditions based on the history of ideas. Nor can it be satisfied through the mere cultivation of empirical approaches to reality. It must aim to develop and unfold a normative concept of law, and write this forward into the future. It derives its essential reflective potential from social-theoretical modelling and methodological development. In the process, the reciprocal confrontation and translation of rival theoretical models opens new learning possibilities not to solve legal conflicts, but to treat them more judiciously. Here, it is above all the foundational legal subjects that, through their discrete approaches and perspectives, open diverse and flexible entryways to the potentialities and actualities of law and, particularly in light of new cases, ensure the necessary variance of options for perception and action. The future of law resides in experimental testing and innovative discovery, in the creative quest for alternative possibilities and possible realities, in the critical and constructive struggle for the law of the future - as the ecological law of future life in the next bio-digital society. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Klaudios Ptolemaios: Handbuch der Geographie, Griechisch-DeutschAlexander JonesAlfred Stückelberger and Gerd Grasshoff, eds. Klaudios Ptolemaios: Handbuch der Geographie, Griechisch-Deutsch. Vol. 1: Einleitung und Buch 1-4. Vol. 2. Buch 5-8 und Indices. With contributions from Florian Mittenhuber, Renate Burri, Klaus Geus, Gerhard Winkler, Susanne Ziegler, Judith Hindermann, Lutz Koch, and Kurt Keller. Basel: Schwabe Verlag, 2006. 1018 pp. 24 color and black-and-white ills. 29 maps. 1 CD-RO M. Cloth, €170.Ptolemy's (...) Geography is at the same time the only survivor of the ancient Greek literature devoted to the topic of drawing maps of the world and is the most extensive ancient list that we possess of names and locations of communities and physical features in the known parts of Europe, Africa, and Asia. It may seem astonishing that a document of exceptional importance for ancient history, geography, and the history of science should have had to wait until now for a complete critical edition. In fact the last complete edition, by C. F. A. Nobbe (1843–45), presents an indiscriminate text with no apparatus beyond a skimpy eighteen-page "Index Criticus" at the end. Two other editions, by F. W. Wilberg and C. H. F. Grashof (1838–45) and by C. Müller and C. T. Fischer (1883–1901), though furnished with apparatus, were vitiated by defective knowledge of the main lines of the textual tradition and besides were never completed. The twentieth century saw major progress in the sorting out of the Geography's manuscripts, with important contributions by (among others) Joseph Fischer, Otto Cuntz, Aubrey Diller, and above all by Paul Schnabel, whose monograph on the subject was meant as a mere harbinger of an edition that he did not live to produce. Meanwhile, scholars in need of a reliable text have had to make do with a patchwork of intentionally partial editions limited to sections of Ptolemy's geographical catalogue covering specific regions.The biggest obstacle in the way of restoring the Geography arises from one of Ptolemy's profoundest insights, that a graphical object such as a world map can be reproduced more accurately if its contents are translated into a collection of numerical coordinates representing each significant point of the drawing, in effect, a digitization. About two thirds of the Geography is thus dedicated to a list of some eight-thousand place names with the longitudes and latitudes of the corresponding localities expressed in degrees and fractions of a degree, ordered [End Page 128] so that one can reconstruct the map by plotting from point to point on a suitable grid of parallels and meridians. Ptolemy thus got rid of the analogue distortions inherent in the process of copying a picture, but he proposed no measures to protect the copying of the text and numerals of his list from errors giving rise to "noise" progressively obscuring the picture. Unfortunately, Greek alphabetic numerals, notations for common fractions, and exotic place names—many of them attested in no other document—were all liable to frequent misreading in ancient and medieval manuscripts. In such material, copying errors are difficult to detect and generally impossible to undo. The modern scholar, working with an abundance of manuscript copies (none older than the late thirteenth century), is incessantly confronted by variant readings of which at least one must be wrong but for which no rational basis for discriminating exists. To complicate matters further, many of the manuscripts contain maps, and the origin of these maps and their relation to the textual history are controversial questions for which the usual resources of textual criticism are inadequate. It is not surprising if editors' appetites have been sated with modest helpings of the Geography.Now at last we have a complete and reliable critical edition of Ptolemy's book, an accomplishment made possible in the first instance by a division of labor among a competent and well-organized team, and secondly by judicious choices about what the edition should and should not attempt to do. The team, the "Ptolemaios-Forschungsstelle," affiliated with the Institute for Classical Philology of the University of Berne, comprises more than a dozen scholars led by a philologist, Alfred... (shrink)

A history of the concept of God through the lens of process thought.

In German judicial methodological theories, Analogie is a form of further development of the law (Rechtsfortbildung) in cases of statutory loopholes (Gesetzeslücke). This paper argues that there are at least four levels of indeterminacy in Analogie which reveal the argumentative characteristics in making an Analogie argument. Current methodological theories commonly construct Analogie based on deductive models; however, this approach fails to address the argumentative process of Analogie. This paper suggests that theories of Inference to the Best Explanation can (...) better capture these characteristics when it is used to represent Analogie in law. It examines theories of IBE and evaluates their potential to facilitate legal reasoning. The last part of this paper suggests an Analogie model which is based on IBE. This alternative model enhances the rationale-giving and dialectical function in the construction of an Analogie argument. (shrink)

According to Corey Brettschneider, we can protect freedom of religion and promote equality, by distinguishing religious groups’ claims to freedom of expression and association from their claims to financial and verbal support from the state. I am very sympathetic to this position, which fits well with my own views of democratic rights and duties, and with the importance of recognizing the scope for political choice which democratic politics offers to governments and to citizens. This room for political choice, I believe, (...) is necessary if people are to have any chance of reconciling the conflicting moral and political obligations they are likely to face, however idealized our conception of democracy or morality. Granted that no amount of personal and political choice will ever guarantee that we do not encounter tragic choices, and painfully conflicting moral demands, it is an important feature of democracy – or so I believe – that its rights reflect the importance of mitigating these conflicts so that people are able, as a rule, to act as they ought, so that they do not experience their moral sentiments, beliefs and capacities simply as grounds for recrimination, alienation and despair. I therefore believe that democracies have good reason not to force the consciences of the undemocratic and the intolerant, where it is possible to accommodate such people without threatening the rights of others. However, the fact that I share many of Brettschneider’s intuitions and beliefs does not mean that I share them all. In particular, I find his conception of democracy unduly narrow, and unduly based on a rather idealized conception of the American constitution which is unlikely to appeal to those whose conceptions of democracy are more republican, more socialist, more pragmatic and more international than his. I have explained these worries elsewhere and drawn out some of their implications for his arguments about privacy and judicial review. There is no need to repeat them here. I will also set to one side my worries about his uninflected, overly abstract and rather reified characterization of the State, in the hope that others will discuss this and that, in the end, a more nuanced conception of the State and a more lively appreciation of the conflicting people, institutions, histories and norms which make up most states, will prove consistent with his arguments. Finally, I do not propose to enter into a detailed discussion of the difficulties of Brettschneider’s overly abstract and reified conception of State ‘speech’ and ‘expression’ which, while motivated by the language of American constitutionalism, appears to cover pretty much anything a government might do, from raising and spending taxes, to accepting judicial interpretations of contested constitutional provisions, or to affirmatively pronouncing on the goals that will animate its legislative agenda and its aspirations for citizen’s lives. Again, while I would have wished for a more nuanced and analytical discussion of so central a concept as ‘expression’ and, in particular, expression by ‘the State’, I am uncertain that anything fundamental in Brettschneider’s account of citizen rights and duties would be altered in the process. Instead, then, I want to focus on points in Brettschneider’s argument that intrigue, and sometimes puzzle, me the most and where issues of nuance and clarification might make a substantial difference to our views of equality and religious freedom. (shrink)

Here, I lay the foundations of a high-level ontology of particulars whose structuring principles differ radically from the 'continuant' vs. 'occurrent' distinction traditionally adopted in applied ontology. These principles are derived from a new analysis of the ontology of “occurring” or “happening” entities. Firstly, my analysis integrates recent work on the ontology of processes, which brings them closer to objects in their mode of existence and persistence by assimilating them to continuant particulars. Secondly, my analysis distinguishes clearly between processes and (...) events, in order to make the latter abstract objects of thought (alongside propositions). Lastly, I open my ontological inventory to properties and facts, the existence of which is commonly admitted. By giving specific roles to these primitives, the framework allows one to account for static and dynamic aspects of the physical world and for the way that subjects conceive its history: facts account for the life of substances (physical objects and processes), whereas events enable cognitive subjects to account for the life story of substances. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Queer Coal:Genealogies in/of the BloodKathryn YusoffIntroductionAn inhuman equationA genealogical account of coal ± a solar line of descentSolar -/- plant -/- coal ≤ plant minor/miner ≠ bloodlineFossil fuels are dark and patient and have a history that is in/of the blood. Fossil fuels are pockets of sunshine that have a solar line of descent. Fossil fuels are a chemical “blood knowledge” (Cixous 1991, 103) that coheres at the seam, (...) coal face, plant, and picket line.A genealogical account of coal in the Anthropocene must go in two directions: into the specificities of bodies, sites, and political formations in which coal comes to matter and through inhuman agency and its continuance notwithstanding the human (as if the human, like Bataille has claimed, is a roundabout for energy, a mere diversion of the forces of the cosmos). If the global claim for geologic force in the Anthropocene is realised through the liberation of vast standing stocks of fossil fuels by major powers, then slicing through Anthropocenic monumentality requires a deliberately minor/miner cut, which is made here through underground passages, sexual politics, and queer solidarities to explore the inter-implications of substances and subjects in coal mining; explicitly, mining is considered as an aesthetics, method, and epistemology that elaborates on an inhuman sociality of the blood; it is a sociality whose passages are specifically located within the 1984–85 miners’ strike in Britain. I focus on these minor (Deleuze and Guattari 1983) stories of solidarity and violence amidst the broader landscape of coal as a defining social materiality in political, judicial, and class powers. While Anthropocenic [End Page 203] discourses claim a global instantiation on behalf of humanity, the planet, and the species-being, this blood knowledge of coal can be considered as an instantiation or a fleshy reminder of the geontological forces of black rocks and their inheritances; what René Char called “its reality of earth, its matter-emotion” (Char quoted in Blanchot 1995, 108) in the corporeal impregnation of an incorporeal universe. In these messy personal-political subjectivities that are entangled with fossil fuels, something might be said about how to begin to apprehend the geontological coordinates of the Anthropocene and the possible forms of sociality that the inhuman enacts (and incites) in ways that eschew its universalising claims.In this process of joining coal to its somewhat unexpected sociopolitical formations—in terms of queer and minoritarian support for the British coal miners—I want to say something about a biopolitics that is subtended by geology (and this is why there is/and will be/blood). This is a biopolitics that moves away from the governance of life and death into a consideration of how the geosocial formations of fossil fuels constitute the very possibilities for certain types of social, sexual, political, and labor arrangements. To study the geosocial matrix as it pertains to both power and possibility is not to add the geologic (or inhuman) as a supplement to an already existing biopolitical conceptualization. Rather, it is to register that the geologic is a mode of material expression that is already active within these formations, yet often bracketed out, and its political potential as a dynamic power within socialities, underplayed. Such an understanding of the permeable materiality of fossil fuels might just bear on the reconceptualization of the Anthropocene as an epoch characterized by a differentiated corporeal geology of/in the blood, rather than as a universal stratigraphic trace in some future geologic record.Against the Promethean trust of the Anthropocene, I follow Hélène Cixous’s dream in The Book of Promethea of “writing fire in the fire” (Cixous 1991, 134); an account made in proximity to the desirous intersection of experience. Such a mode of feminist geophilosophy seeks out the form of the underground—the underground as a way of being or a “thing state” (Lispector 2014, 109)—closing the gap between writing and being written. What follows is a fragmented genealogy that begins in the general conditions of inhuman matter and ends up in the specifics of the British coal mining strike in the 1980s. First, some mining methodology and Anthropocene drill sites.Some Drill Sites... (shrink)

This is an excellent philosophical study of a frequently neglected ethical problem regarding substitute judgments for incompetent persons. In Part I, the discussion of the legal context in which the problem arises gives the reader an informative and perceptive account of the Supreme Court's acknowledgment of certain fundamental rights in substantive due process cases. The analysis of the line of cases pertaining to the right of privacy and its implication for the problem of the incompetent person presents a good (...) case for the view that "the history of the problem is in fact a legal history." "The problem arises with the Court's articulation of fundamental rights because the question of whether and in what manner the incompetent person possesses these same rights follows immediately from this. Once the courts establish that the incompetent person does possess these rights, they are confronted with the difficulty of determining who shall act on behalf of the incompetent person". The three chapters that comprise Part I are valuable in reminding the reader of the legal aspect of many contemporary moral issues, such as contraception, abortion, etc.; and the importance of the doctrine of judicial strict scrutiny with respect to invidious discriminations. (shrink)

The philosophic spectator watches from a distance as a “disinterested” and impartial member of an audience, Lectures on Kant’s political philosophy, University of Chicago Press, 1992; Kant, On history, Prentice Hall Inc, 1957). Judicial systems use many of the elements of the spectator in the concept of an eyewitness but, with increased video technology use, the courts have taken the witness a step further by hiring forensic video analysts. The analyst’s stance is rooted in objectivity, and the process (...) of breaking a video down to its component parts to examine it, but is it based on the philosophic spectator? To better understand whether the forensic video analyst has adopted the stance of the philosophic spectator, this paper examines both the analyst and spectator, and discusses the implications for how we think and administer justice. (shrink)

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the (...) problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric. (shrink)

Modernity is a stage in societies’ development that is the corollary of enlightenment. It has variously been conceived to be the ultimate moment in the unfolding of human history in the sense that norms and values, and practices and institutions are nearly or at their most perfect. However, the conceived prelude to or realization of utopia does not accord with reality in many specific modern societies, even those that are generally considered to be the forerunners of modernity. In Africa, the (...) onset of modernity and its extension into the diverse realms of human beings’ lives has entailed norms and values, and practices and institutions that are the genesis of dystopia. This article examines the ambivalent nexus of modernity and human rights in Africa from the onset of the modernization project to date. Using critical theory, the article argues that although modernity is credited with the birth of human rights, in Africa its primary actors, namely capital, the markets, and the state, are either ambivalent to and/or causal to widespread and deep human rights violations. The human rights violations are systemically and systematically cast as incidental and spurious rather than the hallmarks of modernity. Judicial, political, and educational institutions act and reiterate their capacities to address the incidental/spurious human rights violations, despite abundant evidence that, as part of modernity, these institutions are ambivalent to human rights and, therefore, can only mask the reality and perpetuate human rights violations. This general stance is the consequence of the pervasive logic of capital. This article explains how this pervasive phenomenon in its various forms, such as state capitalism and global capitalism, coupled with neopatrimonialism, has impacted the institution and practice of human rights in Africa. The analysis concludes that though modernity is credited with the birth of human rights regimes, its historicity has been causal of significant violations of human rights. The violations unleashed by capital are exacerbated by political elites who, in their processes of policy-making and budgetary deliberation, and implementation, marginally conceive nation-extensive notions of common good. Consequently, violation of human rights is rampant. (shrink)

In India, judicial review is not a static phenomenon. It has ensured that the Constitution is the supreme law of the land, and in situations when a law impinges on the rights and the liberties of citizens, it can be pruned or made void. This is a collection of scholarly essays demonstrating the different facets of judicial review based on the vast area of comparative constitutional law. Importantly, it honours the body of work of Upendra Baxi, legal scholar (...) and author, whose contributions have shaped our understanding of legal jurisprudence and expanded the scope of social transformation in India. This volume recognizes his role as an Indian jurist. Various constitutional law experts come together to reflect on his expositions on the role of the apex court, judicial activism, accountability of judiciary, laws on surrogacy and adultery and so on. (shrink)