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The Functions of Law
This book seeks to contribute to a legal positivist picture of law by defending two metaphysical claims about law and investigating their methodological implications. One claim is that the law is a kind of artifact, a thoroughgoing human creation for performing certain tasks or accomplishing certain goals. That is, artifacts are generally understood in terms of their functions. When discussing artifacts, the notion of function need not be as mysterious or problematic as might be the case with biological functions. The other claim is that the law is an institution, a specific kind of artifact that creates artificial roles which allow for the establishment and manipulation of rights and duties...
Philosophical Foundations of Precedent
Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprises of well-established leaders in the discipline and new voices in legal philosophy. The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law and allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world. In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems.
Sociological Approaches to Theories of Law
Sociological Approaches to Theories of Law applies empirical insights to examine theories of law proffered by analytical jurisprudents. The topics covered include artifact legal theory, law as a social construction, idealized accounts of the function of law, the dis-embeddeness of legal systems, the purported guidance function of law, the false social efficacy thesis, missteps in the quest to answer 'What is law?', and the relationship between empiricism and analytical jurisprudence. The analysis shows that on a number of central issues analytical jurisprudents assert positions inconsistent with the social reality of law. Woven throughout the text, the author presents a theoretically and empirically informed account of law as a social institution. The overarching theme is that philosophical claims about the nature of law can be tested and improved through greater empirical input.
The Differentiation and Autonomy of Law
This Element looks first at the fundamental principle of modernity that is the functional differentiation of society, and the emergence of autonomous, positive law. The careful architecture of differentiation, balance, and mutual performance between the legal, political and economic systems is jeopardised with the hypertrophy of any one of the structurally coupled systems at the expense of the others. The pathologies are described in the second section of the Element. It explores how, under conditions of globalisation, market thinking came to hoist itself to the position of privileged site of societal rationality. In the third section we look at what sustains law's own 'reflexive intelligence' under conditions of globalisation, and whether we can still rely today on the constitutional achievement to guarantee law's autonomy, its democratic credentials and its ability to reproduce normative expectations today.
The Philosophy of Legal Proof
Criminal courts make decisions that can remove the liberty and even life of those accused. Civil trials can cause the bankruptcy of companies employing thousands of people, asylum seekers being deported, or children being placed into state care. Selecting the right standards when deciding legal cases is of utmost importance in giving those affected a fair deal. This Element is an introduction to the philosophy of legal proof. It is organised around five questions. First, it introduces the standards of proof and considers what justifies them. Second, it discusses whether we should use different standards in different cases. Third, it asks whether trials should end only in binary outcomes or use more fine-grained or precise verdicts. Fourth, it considers whether proof is simply about probability, concentrating on the famous 'Proof Paradox'. Finally, it examines who should be trusted with deciding trials, focusing on the jury system.
Revisiting the Rule of Law
This Element offers an accessible introduction to theoretical writing on the rule of law for anyone who wants to understand more about how we think and write about this central idea of legal and political thought. Part 1, 'Approaching the Rule of Law', examines the methods through which the idea of the rule of law is typically approached by those who set out to theorise it. Part 2, 'Untangling the Rule of Law', asks whether it is possible to untangle the rule of law from the various contributions, companions, connections, conflations and controversies with which it tends to be associated. Part 3, 'Revisiting the Rule of Law', signals to new frontiers of rule of law thought by addressing the assumptions about legal form that shape its theoretical treatment, and by investigating what we know about the people who carry its burdens and benefit from its offerings.
The Moral Prerequisites of the Criminal Law
This Element examines the debates about whether criminalizing of morally wrong ideas idea is right and what we would lose if we abandoned the criminal law's connection to morality. Thus, it seeks to shed light on the aims of the criminal law and moral prerequisites for legitimate criminalization.
The Artifactual Nature of Law
This thought-provoking book develops and elaborates on the artifact theory of law, covering a wide range of related theoretical and practical topics. Featuring international contributions from both noted and up-and-coming scholars in law and philosophy, it offers a range of perspectives that flesh out the artifact theory of law, it also introduces criticisms of previous formulations of the theory and inquires into its potential payoffs.
The Nature of International Law
The Nature of International Law provides a comprehensive analytical account of international law within the prototype theory of concepts.
The Functions of Law
What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so as to alter their rights and responsibilities toward each other. To say that it is an artefact is to say that it is a tool of human creation that is designed to signal its usability to people who interact with it. This picture of law's nature is marshalled to critique theories of l...
