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Jurisprudence in the Mirror
There is something quite puzzling about the global conversation on jurisprudence. On the one hand, jurisprudence is supposed to deal with abstract questions concerning the nature, structure, and distinctive features of the law. These questions are not tightly associated with, or dependent on, the particular legal practices in one jurisdiction or another. But, on the other hand, it seems that jurisprudents are tacitly affected by their background institutional context: there is an evident divide between theorizing about the law in the civil law world and in the common law world. Jurisprudence in the Mirror: The Common Law World Meets the Civil Law World systematically presents the major achie...
Legal Power and Legal Competence
This volume explores the concepts of legal power and legal competence in fourteen original, cutting-edge chapters by leading legal theorists. Legal power and legal competence are major topics in jurisprudence, as they concern a range of practices, common to all modern legal systems, that empower individuals to bring about changes in the respective system by changing their own legal position or the legal positions of others. This compilation covers five broad themes. The chapters in the first section address open questions on the meaning of legal power and legal competence, while those in the second tackle problems regarding their normativity. The third section is devoted to specifically exploring the relationship between legal power and constitutive norms. The fourth focuses on the analysis of legal officials and legal offices, while the fifth and final section assesses various theories of legal power and legal competence.
Methodology in Private Law Theory
Methodology in Private Law Theory: Between New Private Law and Rechtsdogmatik represents a first-of-its-kind dialogue between leading lights in German and American private law theory. The chapters in this volume build upon established traditions of scholarship in German private law and harness resurgent scholarly interest in private law in the United States, inviting readers to question how private law functions on both sides of the Atlantic. In the context of the cross-fertilization of legal scholarship, the transnationalization of law, and the historical ties between US and German debates on methodology, the volume encourages reasoned engagement with private law doctrines and institutions....
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...
After Meaning
Inspiring and distinctive, After Meaning provides a radical challenge to the way in which international law is thought and practised. Jean d’Aspremont asserts that the words and texts of international law, as forms, never carry or deliver meaning but, instead, perpetually defer meaning and ensure it is nowhere found within international legal discourse.
Global Anti-Money Laundering Regulation
This book explores the politics of money laundering and terrorist financing (ML/TF) regulation in several countries across Africa and the Small Island States. Developed countries created the Financial Action Task Force (FATF) to combat ML/TF globally. Expectedly, the FATF’s standards mirror existing banking regulations within the G7 countries. Yet, the standards apply to all countries irrespective of the limited ML/TF risks they pose to the global economy, their weak pre-conditions for effective regulation and their non-involvement in the FATF’s framing. Still, such countries, mainly within the Global South, have worked hard to amplify their compliance with the regime due to fears of the...
Modern Legal Interpretation
Legalism or legal formalism usually depicts judges as resolving cases by allegedly merely applying pre-existing legal rules. They do not seem to legislate, exercise discretion, balance or pursue policies, and they definitely do not look outside of conventional legal texts for guidance in deciding new cases. For them, the law is an autonomous domain of knowledge and technique. What they follow are the maxims of clarity, determinacy, and coherence of law. This perception of law and adjudication is sometimes designated as “an orthodox lawyering”. However, at least in certain cases, it is very difficult to say that legalism is not an inappropriate theory or a method of legal interpretation. ...
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.
Proportionality in Law
This book addresses the principle of proportionality, which is currently one of the most important instruments of judicial review, from both analytical and theory of law perspectives. As such, the analysis provided is far more comprehensive and can be applied to all areas of law, not just constitutional law. On the one hand, the volume offers a broad perspective on several aspects related to proportionality, such as its structure, the balancing methodology and the distinction between rules and principles. On the other, it provides an innovative, normativist and analytical approach to proportionality, helping readers understand its structure and behaviour.
On Flat Ontologies and Law
This book examines the importance of flat ontologies for law and sociolegal theory. Associated with the emergence of new materialism in the humanities and social sciences, the elaboration of flat ontologies challenges the binarism that has maintained the separation of culture from nature, and the human from the nonhuman. Although most work in legal theory and sociolegal studies continues to adopt a non-flat, anthropocentric and immaterial take on law, the critique of this perspective is becoming more and more influential. Engaging the increasing legal interest in flat ontologies, this book offers an account of the main theoretical perspectives, and their importance for law. Covering the work...
