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1
Brewer, Scott. Ends, means and meaning in legal interpretation. [Toronto, Ont.]: Faculty of Law, University of Toronto, 1994.
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Thienel, Rudolf. Kritischer Rationalismus und Jurisprudenz: Zugleich eine Kritik an Hans Alberts Konzept einer sozialtechnologischen Jurisprudenz. Wien: Manz, 1991.
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Comparative legal cultures: On traditions classified, their rapprochement & transfer, and the anarchy of hyper-rationalism with appendix on legal ethnography. Budapest: Szent István Társulat, 2012.
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Approaches to legal rationality. Dordrecht: Springer, 2010.
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Gabbay, Dov M., Patrice Canivez, Shahid Rahman i Alexandre Thiercelin, red. Approaches to Legal Rationality. Dordrecht: Springer Netherlands, 2011. http://dx.doi.org/10.1007/978-90-481-9588-6.
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Fierro, Héctor Fix. Courts, justice, and efficiency: A socio-legal study of economic rationality in adjudication. Oxford: Hart, 2003.
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Pashencev, Dmitriy, Aleksandra Dorskaya i Maksim Zaloilo. The concept of a digital state and a digital legal environment. ru: INFRA-M Academic Publishing LLC., 2021. http://dx.doi.org/10.12737/1288140.
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The development of digital technologies, large-scale digitalization that has covered all advanced countries, the entry of states into the era of the sixth technological order lead to significant changes in the state itself, its structure and functions. The monograph reveals the fundamental transformations of the modern state under the influence of the digital and technological vector of its development.
Special attention is paid to qualitative technological changes in the main areas of state activity, the processes of creating legal norms (law-making) and their practical implementation (legal realization).
The digital state emerging under the influence of new technologies acts as a theoretical model of the state of the future. Going beyond the strict scientific rationality in its classical sense allowed us to study the post-modern state, the phenomenon of which is increasingly becoming a reality and is embodied through the digital legal environment.
For scientists, practitioners of public authorities, graduate students, students of law faculties.
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EU Migration Law: Legal Complexities and Political Rationales. Oxford University Press, 2014.
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Criminal Accusation: Political Rationales and Socio-Legal Practices. Taylor & Francis Group, 2017.
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Levesque, Roger J. R. Legal Rationales Relating to School Segregation and Diversity. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190633639.003.0003.
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This chapter details how the legal system applies the legal developments to racial classifications, with a focus on school diversity and segregation. That analysis centers on the extent to which the government retains a compelling interest to assert a need for differential treatment and the extent to which the government’s actions reach the intended goals of furthering that compelling interest. To do so, the analysis proceeds in two directions, which reveal how the legal system raises questions that readily lend themselves to empirical formulations. The chapter concludes by presenting some of the key challenges raised by empirical evaluations of legal rationales, which sets the stage for the remainder of the book.
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Ball, Richard. The Legitimacy of The European Union through Legal Rationality. Routledge, 2013. http://dx.doi.org/10.4324/9780203703205.
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Krawietz, Werner, Neil MacCormick i Georg Henrik von Wright, red. Prescriptive Formality and Normative Rationality in Modern Legal Systems. Duncker & Humblot, 1994. http://dx.doi.org/10.3790/978-3-428-47895-8.
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Dawkins, Casey J. Exclusionary Land-Use Policies: Economic Rationales and Legal Remedies. Oxford University Press, 2011. http://dx.doi.org/10.1093/oxfordhb/9780195380620.013.0021.
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Pugh, Jonathan. Autonomy, Rationality, and Contemporary Bioethics. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198858584.001.0001.
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Personal autonomy is often lauded as a key value in contemporary Western bioethics, and the claim that there is an important relationship between autonomy and rationality is often treated as an uncontroversial claim in this sphere. Yet, there is also considerable disagreement about how we should cash out the relationship between rationality and autonomy. In particular, it is unclear whether a rationalist view of autonomy can be compatible with legal judgments that enshrine a patient’s right to refuse medical treatment, regardless of whether ‘… the reasons for making the choice are rational, irrational, unknown or even non-existent’. This book brings recent philosophical work on the nature of rationality to bear on the question of how we should understand autonomy in contemporary bioethics. In doing so, the author develops a new framework for thinking about the concept, one that is grounded in an understanding of the different roles that rational beliefs and rational desires have to play in personal autonomy. Furthermore, the account outlined here allows for a deeper understanding of different forms of controlling influence, and the relationship between our freedom to act, and our capacity to decide autonomously. The author contrasts his rationalist account with other prominent accounts of autonomy in bioethics, and outlines the revisionary implications it has for various practical questions in bioethics in which autonomy is a salient concern, including questions about the nature of informed consent and decision-making capacity.
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Jolls, Christine. Bounded Rationality, Behavioral Economics, and the Law. Redaktor Francesco Parisi. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780199684267.013.005.
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Behavioural economics has become a leading force in applied economics, including in economic analysis of law. At the heart of behavioural economics is the concept of bounded rationality. Bounded rationality suggests that humans face important limitations in knowledge and decision-making capability. Such limitations have clear importance to both the understanding and the improvement of the legal system. Knowledge limitations present a particularly compelling area for legal analysis. Two case studies of debiasing through law in response to knowledge limitations reveal the potential mechanisms by which law may ease such limitations among boundedly rational actors. In such cases of debiasing through law, empirical evidence plays a pivotal role, as this evidence both identifies the existence of knowledge limitations in the first instance and provides a means by which to assess whether a given legal rule allays such limitations.
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Fix-Fierro, Hector. Courts, Justice and Efficiency: A Socio-Legal Study of Economic Rationality in Adjudication. Hart Publishing (UK), 2004.
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Ball, Richard. Legitimacy of the European Union Through Legal Rationality: Free Movement of Third Country Nationals. Taylor & Francis Group, 2015.
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Ball, Richard. Legitimacy of the European Union Through Legal Rationality: Free Movement of Third Country Nationals. Taylor & Francis Group, 2013.
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Werner, Krawietz, MacCormick Neil, Wright, G. H. von 1916- i Summers Robert S, red. Prescriptive formality and normative rationality in modern legal systems: Festschrift for Robert S. Summers. Berlin: Duncker & Humblot, 1994.
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Krawietz, Werner, Neil MacCormick i Georg Henrik von Wright, red. Prescriptive Formality and Normative Rationality in Modern Legal Systems. Festschrift for Robert S. Summers. Duncker & Humblot, 1994. http://dx.doi.org/10.3790/978-3-428-07895-0.
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Alexy, Robert. Law's Ideal Dimension. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198796831.001.0001.
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Law in general, including constitutional rights and legal argumentation, has a dual nature. This is the underlying thesis of this collection of twenty-one chapters devoted to legal philosophy and constitutional law. Law connects a real dimension, defined by authoritative issuance and social efficacy, with an ideal dimension, defined by the claim to correctness, which essentially includes a claim to justice. The chapters of the first part of the book establish on this basis a non-positivistic concept of law. In the second part, the concept of constitutional rights is connected with proportionality analysis, explicated by principles theory and understood as a necessary condition of the rationality of the application of constitutional rights. In the third part, it is shown that rationality is possible in law because rational legal argumentation is possible. Here the basis is discourse theory. The final result is a system that brings the formal idea of legal certainty together with the substantive idea of justice.
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Sanders, Rebecca. Permissive Constraint. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190870553.003.0002.
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Can legal norms limit state violence? International relations and international law scholarship provide a variety of answers to this problem. Realist, decisionist, and critical theorists conceptualize law as permit, as a weak constraint on and tool of powerful states. In contrast, liberals and constructivists emphasize law’s capacity to constrain states for rationalist and normative reasons. This chapter examines whether these contending perspectives adequately account for how authorities navigate legal rules across legal cultures. It argues that legal cultures of exception and secrecy tend to operate in accordance with the assumptions of law as permit, while largely aspirational cultures of human rights fulfill a vision of law as constraint. In the United States’ contemporary culture of legal rationalization, law serves as a permissive constraint. Permissive legal interpretation has enabled American officials to establish legal cover for human rights abuses, while legal norms simultaneously delimit the plausibility of legal justification.
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Javier, El-Hage. How May Tribunals Apply the Customary Necessity Rule to the Argentine Cases? An Analysis of ICSID Decisions with Respect to the Interaction between Article XI of the U.S.-Argentina BIT and the Customary Rule of Necessity. Oxford University Press, 2013. http://dx.doi.org/10.1093/law-iic/9780199983025.016.0011.
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This chapter addresses the question of why the nine decisions from the International Centre for Settlement of Investment Disputes (ICSID) arising under the treaty between the United States of America and the Argentine Republic concerning the reciprocal encouragement and protection of investment have been so inconsistent in the face of largely undisputed facts and identical legal norms. It first sets forth, in abstract, a set of interpretive parameters and corresponding legal rationales that may be followed by tribunals when dealing with situations in which treaty and customary international law rules interact. It then analyzes each of the Argentine decisions according to the interaction rationales chosen by tribunals and committees, with a specific focus on the consistency of their own arguments for the application of the rule of necessity of customary international law.
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Siems, Mathias M. Taxonomies and Leximetrics. Redaktorzy Jeffrey N. Gordon i Wolf-Georg Ringe. Oxford University Press, 2015. http://dx.doi.org/10.1093/oxfordhb/9780198743682.013.18.
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This chapter focuses on taxonomies that are commonly applied to corporate law and governance. It begins with an overview of the main rationales for and types of such corporate taxonomies before turning to a discussion of four types of typologies: limited typologies dealing with either legal or non-legal questions, and general typologies having either a legal or a non-legal focus. It then outlines challenges to these taxonomies, with particular emphasis on the criticism against the quantitative research on “legal origins” and how “leximetrics” can be used to address the question of whether or not there are distinct legal families in corporate law. It also presents a cluster analysis of investor protection data of the World Bank’s Doing Business Report.
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Cady, Duane L. Moral Vision: How Everyday Life Shapes Ethical Thinking (Studies in Social, Political, and Legal Philosophy). Rowman & Littlefield Publishers, Inc., 2005.
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Cady, Duane L. Moral Vision: How Everyday Life Shapes Ethical Thinking (Studies in Social, Political, and Legal Philosophy). Rowman & Littlefield Publishers, Inc., 2005.
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Neves, Marcelo. Constitutionalism and the Paradox of Principles and Rules. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780192898746.001.0001.
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The present book offers a critical counterpoint to Ronald Dworkin’s principle-based theory, and in particular to Robert Alexy’s idea of optimizing balancing. Instead of ceding to the compulsion of an optimizing balancing, it suggests the possibility of a comparative or at least ‘satisficing’ balancing, considering the precariousness of legal rationality. The book also reverses Dworkin’s metaphor, associating rules with Hercules and principles with the Hydra. It takes constitutional principles seriously, criticizing the abuse of principles by the legal and constitutional doctrine and practice, but pointing out their relationship of complementarity and tension with rules. Finally, the author offers an alternative model to the recent legal and constitutional theory on the basis of certain assumptions of the systems theory. It deals especially with the paradox of the circular and reflexive relationship between constitutional principles and rules: the former are referred primarily to the openness and adequacy of legal system to society and thus to substantive argumentation; the second are referred primarily to the closure and consistency of legal system and thus to formal argumentation.
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Yeon, Asmah Laili, i Yuhanif Yusof, red. Philisophy and Theory of Law. UUM Press, 2015. http://dx.doi.org/10.32890/9789670876023.
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Understanding of the philosophy and theory behind the law is significance to law makers, legal practitioners, academicians and laymen. The rationales are to have some understanding of public policy and the real aim of the laws that made up particular practices or the root of practices. Therefore, this book highlight selected philosophy and theory of laws in the area of commercial, financial and corporate law; medical law; constitutional and administrative law and lastly human resource law. The massive information and knowledge in this book will benefits law makers, legal practitioners, academicians, universities students in understanding the philosophy and theory of the law first, before appreciating and applying the substantive law in their profession and life.
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Stahn, Carsten. Justice as Message. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198864189.001.0001.
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International criminal justice is a form of social performance. It relies on messages, speech acts, and performatives practices in order to convey social meaning. Major criminal proceedings, such as Nuremberg or Tokyo and other post-Second World War trials have been branded as ‘spectacles of didactic legality’. However, the expressive and the communicative functions of law have been sidelined in institutional discourse and legal practice. The concept of expressivism is referred to in justifications of punishment or sentencing rationales. It appears as reference in scholarly treatises, but it has remained crucially underdeveloped. This book is an attempt to remedy this gap. It shows that expression and communication are not only an inherent part of the punitive functions of international criminal justice but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. It argues that expressivism is not a classical justification of justice or punishment on its own but rather a means to understand its aspirations and limitations, to explain how justice is produced, and to ground punishment rationales.
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Sanders, Rebecca. Deprivations of Life and Liberty. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190870553.003.0004.
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Post-9/11 American counterterrorism policy has strained legal prohibitions on arbitrary deprivations of life and liberty. This chapter surveys domestic and international legal norms governing killing and detention in peace and war and traces how Americans have justified breaking these rules over time. In cultures of exception, authorities invoked wartime necessity as well as explicitly racist logics to kill, deport, intern, and violate the due process rights of people deemed dangerous. During the Cold War, the United States secretly colluded with allied regimes to disappear dissidents. In the global war on terror, policymakers sought to legally rationalize immigration roundups, watch lists, indefinite imprisonment at Guantánamo Bay and elsewhere, military commissions, and targeted killing in reference to extant norms. Lawyers exploited loopholes and gaps in the law in order to claim that unlawful enemy combatants are subject to wartime detention, trial, and lethal targeting but do not enjoy the rights of lawful combatants.
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Stone, Adrienne, i Frederick Schauer, red. The Oxford Handbook of Freedom of Speech. Oxford University Press, 2021. http://dx.doi.org/10.1093/oxfordhb/9780198827580.001.0001.
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This book discusses freedom of speech, which is central to the liberal democratic tradition. Freedom of speech touches on every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. Moreover, it is frequently referred to in public discourse and has inspired a wealth of legal and philosophical literature. The book provides a critical analysis of the foundations, rationales, and ideas that underpin freedom of speech as a political idea, and as a principle of positive constitutional law. In doing so, it examines freedom of speech in a variety of national and supranational settings from an international perspective.
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Koskenniemi, Martti, Mónica García-Salmones Rovira i Paolo Amorosa, red. International Law and Religion. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198805878.001.0001.
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This book maps out the territory of ‘international law and religion’ challenging receiving traditions in fundamental aspects. On the one hand, the connection of international law and religion has been little explored. On the other, most of current research on international legal thought presents international law as the very victory of secularization. In other words, international law would be the final product of a rationalist and humanist tradition that has become globally ‘adult’. By questioning that narrative of secularization this book places itself in almost uncharted territory. The book consists of a Preliminary Study, written by Martti Koskenniemi, and eighteen chapters arranged in four thematic sections. From the Middle Ages’ early conceptualizations of rights and law to contemporary political theory, the chapters bring to life debates concerning the interaction of the meaning of the legal and the sacred. The contributors approach their chapters from an array of different backgrounds and perspectives but with the common objective of investigating the mutually shaping relationship of religion and law. The collaborative endeavour that this volume offers makes available substantial knowledge on the question of international law and religion and provides referential points that would help in future research in the topic.
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Mears, Daniel P., i Joshua C. Cochran. Who Goes to Prison? Redaktorzy John Wooldredge i Paula Smith. Oxford University Press, 2016. http://dx.doi.org/10.1093/oxfordhb/9780199948154.013.2.
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This essay discusses changes in the composition of inmate populations in the United States over the past several decades based on legal factors (i.e., types of offenses and offenders) and demographic variables (i.e., race, ethnicity, age, and sex) and examines why variation in inmate composition matters. In particular, black incarceration rates are substantially greater than those of whites and Hispanics, and over time these differences have become more pronounced for black males in particular as compared to other groups. Possible reasons for these changes are considered such as the roles of police and courts in shaping inmate demographics and the implications of the shift from decision-making based on substantive rationality to more “structured“ (formally rational) decision-making.
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Lawson, Gary, i Guy I. Seidman. Deference. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190273408.001.0001.
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Deference is perhaps the most important concept and practice in law. It lies at the core of every system of precedent, appellate review, federalism, and separation of powers, all of which center on how one actor should deal with previous decisions. Oddly enough, deference is also one of the most underanalyzed and undertheorized legal concepts and practices, perhaps because its applications are so varied. This book’s goal is to provide a definition of and vocabulary for deference that can be used to describe, explain, and/or criticize deference in all of its manifestations in the law, including some manifestations that are not always identified by legal actors as instances of deference, such as practices of precedent in which institutional actors consider their own prior decisions. This book undertakes a descriptive and conceptual, not normative or critical, analysis of deference. It leaves to others the question whether deference, in any particular context, is “legitimate” or “bad,” and it does not seek to prescribe whether and how any legal system should apply deference in any specific circumstance or to critique any particular deference doctrines. Rather, it hopes to bring the very concept of deference to the forefront of legal discussion; to identify, catalogue, and analyze at least the chief among its many legal applications; to set forth the many and varied rationales that can be and have been offered in support of (some species of) deference in different legal contexts; and thereby to provide a vocabulary and conceptual framework that can be employed in future projects, whether those projects are descriptive or prescriptive. While this book draws its material almost entirely from American law and practice, we hope in future work, perhaps with the help of other scholars, to expand the study to include the law and practice in other countries and particularly in non-common-law legal systems.
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French, Nathan S. And God Knows the Martyrs. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780190092153.001.0001.
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Jihadi-Salafi narratives of martyrdom-seeking operations are filled with praise for what they label the exemplary self-renunciative acts of their martyrs performed as a model of the earliest traditions of Islam. While many studies evaluate the biographies of these would-be martyrs for evidence of social, psychological, political, or economic strain in an effort to rationalize what are often labeled “suicide bombings,” this book argues that through their legal arguments debating martyrdom-seeking operations, Jihadi-Salafis, including those fighting for al-Qaʿida, ISIS, and their affiliates, craft a theodicy meant to address the suffering and oppression faced by the global Muslim community. Taking as its source material legal arguments (fatwas), texts, pamphlets, magazines, forum posts, videos, and audio files from authors sympathetic to both al-Qaʿida and ISIS on the subjects of martyrdom operations, jurisprudence, and political philosophies, this book reveals that the Jihadi-Salafi legal debates on martyrdom-seeking rearrange the basic objectives (maqāṣid) of the Shariʿa around the principles of maximizing the general welfare (maṣlaḥa) and promoting religion (dīn) above all other concerns—including the preservation of life. This utilitarian turn opens the possibility for formulating a meaningful engagement and critique of Jihadi-Salafi legal interpretation and theories of warfare within a broader, just-war framework. However, as the jurists and propagandists of ISIS demonstrate, this turn also opens the possibility for the utilization of self-renunciative violence as engendering modes of state formation.
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Sample, Lisa L., i Emily C. Radar. Rape and domestic sexual assault. Redaktor Teela Sanders. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780190213633.013.5.
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The way in which we define rape and domestic sexual assault, the rates at which it occurs, the motives for offending, and the legislative and criminal justice responses have varied across and within nation-states over time. This essay covers the historical context of rape laws, legal definitions of rape over time, how definitions of rape vary across nations, and the inclusion of domestic sexual assault in rape definitions. It reviews the rates of rape over time across nations using official and victimization data. It discusses the motives offered to explain, rationalize, or justify forced sexual assault and analyses the legislative and criminal justice responses to rape across countries over time. The essay concludes with a discussion of how rape definitions, laws, and criminal justice responses may continue to evolve.
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Choo, Andrew L.-T. Evidence. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198806844.001.0001.
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Andrew Choo’s Evidence provides an account of the core principles of the law of civil and criminal evidence in England and Wales. It also explores the fundamental rationales that underlie the law as a whole. The text explores current debates and draws on different jurisdictions to achieve a mix of critical and thought-provoking analysis. Where appropriate the text draws on comparative material and a variety of socio-legal, empirical, and non-legal material. This (fifth) edition takes account of revisions to the Criminal Procedure Rules, the Criminal Practice Directions, and the Police and Criminal Evidence Act Codes of Practice. It also examines in detail cases on various topics decided since the last edition was completed, including:•Ibrahim v UK (ECtHR (GC), 2016) (confession evidence);•Myers v R (PC, 2015) (expert evidence);•R v Awoyemi (CA, 2016) (bad character evidence);•R v Brown (Edward) (CA, 2015) (legal professional privilege);•R v Evans (Chedwyn) (CA, 2016) (sexual behaviour evidence);•R v FNC (CA, 2015) (DNA evidence);•R v G (S) (CA, 2017) (vulnerable witnesses);•R v Hunter (Nigel) (CA, 2015) (good character evidence);•R v Lubemba (CA, 2014) (vulnerable witnesses);•R v Mitchell (SC, 2016) (bad character evidence);•R v Platt (CA, 2016) (bad character evidence);•R v Shanmugarajah (CA, 2015) (photographic evidence);•R v Tsekiri (CA, 2017) (DNA evidence).
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Reynolds, Jesse L. Solar Climate Engineering, Law, and Regulation. Redaktorzy Roger Brownsword, Eloise Scotford i Karen Yeung. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780199680832.013.71.
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Solar climate engineering—intentional modification of the planet’s reflectivity—is coming under increasing consideration as a means to counter climate change. At present, it offers the possibility of greatly reducing climate risks, but would pose physical and social risks of its own. This chapter offers an introduction to solar climate engineering, and explores its potential, risks, and legal and regulatory challenges. It also contextualizes these proposals with respect to other emerging technologies and the broader socio-political milieu. The chapter discusses the contours of existing and potential regulation, particularly at the international level. These aspects include regulatory rationales, diverse characteristics of proposed regulatory regimes, difficulties in defining the regulatory target, and the management of uncertainty through precaution. The chapter closes with suggested future research directions in the law and regulation of solar climate engineering.
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Sanders, Rebecca. Surveillance. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190870553.003.0005.
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This chapter explores shifting patterns of intelligence surveillance in the United States. The Fourth Amendment protects Americans from unreasonable search and seizure without a warrant, but foreign spying is subject to few constraints. During the Cold War, surveillance power was abused for political purposes. Operating in a culture of secrecy, American intelligence agencies engaged in extensive illegal domestic spying. The intelligence scandals of the 1970s revealed these abuses, prompting new laws, notably the Foreign Intelligence Surveillance Act. Fearing further recrimination, the national security establishment increasingly demanded legal cover. After 9/11, Congress expanded lawful surveillance powers with the PATRIOT Act. Meanwhile, the Bush administration directed the National Security Agency to conduct warrantless domestic wiretapping. To justify this program, officials sought to redefine unconstrained foreign surveillance to subsume previously protected communications. The Obama administration continued to authorize mass surveillance and data mining programs and legally rationalize bulk collection of Americans’ data.
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Davis, Kevin E. Between Impunity and Imperialism. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780190070809.001.0001.
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Between Impunity and Imperialism: The Regulation of Transnational Bribery describes the legal regime that regulates transnational bribery, identifies and explains the rationales that have guided its evolution, and suggests directions for reform. The broad argument is that the current regime embodies a set of values, theories, and practices labeled the “OECD paradigm.” A key premise is that transnational bribery is a serious problem which merits a vigorous legal response, particularly given the difficulty of detecting instances of bribery. The shape of the appropriate response can be summed up in the phrase, “every little bit helps.” In practice this means that: prohibitions should capture a broad range of conduct; enforcement should target as broad a range of actors as possible; sanctions should be as stiff as possible; and as many enforcement agencies as possible should be involved in the enforcement process. The OECD paradigm embraces two interrelated propositions: that transnational bribery is a serious problem and that it demands a uniform response. An important challenge to the OECD paradigm, labeled the “anti-imperialist critique,” accepts that transnational bribery is a serious problem but denies that the appropriate legal responses must be uniform. This book explores both the OECD paradigm and the anti-imperialist critique, and provides a detailed analysis of their implications for the key elements of transnational bribery law. It concludes by suggesting that the competing views can be reconciled by moving toward a more inclusive and experimentalist regime which accommodates reasonable disagreements about regulatory design and is crafted with due attention to the interests of all affected parties.
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Nikoletta, Kleftouri. Deposit Protection and Bank Resolution. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780198743057.001.0001.
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The 2007–08 global financial crisis proved that the interests of bank depositors are inadequately protected. Although a vast expansion in deposit protection systems around the world followed, our understanding of the impact of those systems and their interaction with bank resolution is still in its infancy. The focus of bank resolution studies has been on the largest systemically important banks, which have wholesale creditors who would be bailed in, leaving retail depositors untouched. However, many banks rely mostly on deposits for financing, and the number of banks of this form is expected to increase. This book aims to explain and provide current material analysis of deposit protection and bank resolution regimes. The analysis is based on an examination of the traditional rationales for creating deposit insurance and bank resolution, and a specific study of the UK, EU, and US legal frameworks. It aims to offer an analysis of this topic and to cover all relevant regulations, from its origins to its most recent developments, in a systematic and thorough way. It approaches the much-desired objective of financial stability from a different angle: that of depositor protection. This book comprises ten chapters, analysing: the rationales for creating a deposit protection system; the limitations of deposit protection systems; the European deposit insurance framework; the European banking union; recent cases on deposit guarantee schemes; international standards on deposit insurance; the UK deposit insurance framework; international and European regulatory developments on bank resolution; the UK Special Resolution Regime; and the US paradigm.
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Rex, Ahdar, i Leigh Ian. Part III, 9 Medical Treatment. Oxford University Press, 2013. http://dx.doi.org/10.1093/acprof:oso/9780199606474.003.0009.
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This chapter examines several medico-legal issues insofar as they have a religious dimension or implicate the religious liberty of the persons seeking or refusing treatment. The chapter is organized as follows. Section II summarizes the law concerning medical treatment, contrasting the position of adults, adolescents or teenagers, and infants. Section III considers the underlying assumptions represented in the disputes between the law and certain religionists who spurn conventional medical treatment in favour of exclusive reliance upon prayer or other spiritual cures. The premises which form the central tenets of conventional or orthodox medicine — reliance upon rationality, insistence upon the scientific method, the need for empirical evidence — have recently been challenged, not only by some devout religionists, but by also a raft of ‘alternative’ health practitioners. Section IV discusses two examples of these broader themes. The chapter concludes with some observations on the extent to which a liberal state accommodates the wishes of believers when they seek to determine their own or their children's health.
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Roger, Halson. Liquidated Damages and Penalty Clauses. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198785132.001.0001.
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This book focuses on liquidated damages and penalty clauses, and analyses the common law jurisdiction to control stipulated damages clauses, as well as the distinction between enforceable liquidated damages clauses and unenforceable penalty clauses. The first part of the book examines the historical origin of the control of these clauses; the second part describes the current control of such clauses and their legal effect, while the third part of the book critically examines the various rationales that have been proposed to justify their regulation. The final part of the book describes analogous provisions and how to avoid drafting contractual clauses that are rendered unenforceable by the penalty rule. The book examines approaches in several common law jurisdictions in addition to England and Wales, including the United States, Australia, New Zealand, and Canada, and brings together principles developed in distinct commercial law contexts (such as shipping contracts) to enable comparison between particular contractual settings.
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Devereux, Andrew W. The Other Side of Empire. Cornell University Press, 2020. http://dx.doi.org/10.7591/cornell/9781501740121.001.0001.
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Via rigorous study of the legal arguments that Spain developed to justify its acts of war and conquest, this book illuminates Spain's expansionary ventures in the Mediterranean in the late fifteenth and early sixteenth centuries. The book proposes and explores an important yet hitherto unstudied connection between the different rationales that Spanish jurists and theologians developed in the Mediterranean and in the Americas. It describes the ways in which Spaniards conceived of these two theatres of imperial ambition as complementary parts of a whole. At precisely the moment that Spain was establishing its first colonies in the Caribbean, the Crown directed a series of Old World conquests that encompassed the Kingdom of Naples, Navarre, and a string of presidios along the coast of North Africa. Projected conquests in the eastern Mediterranean never took place, but the Crown seriously contemplated assaults on Egypt, Greece, Turkey, and Palestine. The book elucidates the relationship between the legal doctrines on which Spain based its expansionary claims in the Old World and the New. It vastly expands our understanding of the ways in which Spaniards, at the dawn of the early modern era, thought about religious and ethnic difference, and how this informed political thought on just war and empire. While focusing on imperial projects in the Mediterranean, the book simultaneously presents a novel contextual background for understanding the origins of European colonialism in the Americas.
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Choo, Andrew L.-T. Evidence. Wyd. 6. Oxford University Press, 2021. http://dx.doi.org/10.1093/he/9780198864172.001.0001.
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Andrew Choo’s Evidence provides an account of the core principles of the law of civil and criminal evidence in England and Wales. It also explores the fundamental rationales that underlie the law as a whole. The text explores current debates and draws on different jurisdictions to achieve a mix of critical and thought-provoking analysis. Where appropriate the text draws on comparative material and a variety of socio-legal, empirical, and non-legal material. This (sixth) edition takes account of revisions to the Criminal Procedure Rules, the Criminal Practice Directions, and the Police and Criminal Evidence Act Codes of Practice. It also examines in detail cases on various topics decided since the last edition was completed, or the significance of which has become clear since then, including: • Addlesee v Dentons Europe llp (CA, 2019) (legal professional privilege) • Birmingham City Council v Jones (CA, 2018) (standard of proof) • R v B (E) (CA, 2017) (good character evidence) • R v Brown (Nico) (CA, 2019) (hearsay evidence) • R v C (CA, 2019) (hearsay evidence) • R v Chauhan (CA, 2019) (submissions of ‘no case to answer’) • R v Gabbai (Edward) (CA, 2019) (bad character evidence) • R v Gillings (Keith) (CA, 2019) (bad character evidence) • R v Hampson (Philip) (CA, 2018) (special measures directions) • R v K (M) (CA, 2018) (burden of proof) • R v Kiziltan (CA, 2017) (hearsay evidence) • R v L (T) (CA, 2018) (entrapment) • R v Reynolds (CA, 2019) (summing-up) • R v S (CA, 2016) (hearsay evidence) • R v SJ (CA, 2019) (expert evidence) • R v Smith (Alec) (CA, 2020) (hearsay evidence) • R v Stevens (Jack) (CA, 2020) (presumptions) • R v Townsend (CA, 2020) (expert evidence) • R v Twigg (CA, 2019) (improperly obtained evidence) • R (Jet2.com Ltd) v CAA (CA, 2020) (legal professional privilege) • R (Maughan) v Oxfordshire Senior Coroner (SC, 2020) (standard of proof) • Serious Fraud Office v Eurasian Natural Resources Corpn Ltd (CA, 2018) (legal professional privilege) • Shagang Shipping Co Ltd v HNA Group Co Ltd (SC, 2020) (foundational concepts; improperly obtained evidence) • Stubbs v The Queen (PC, 2020) (identification evidence) • Volaw Trust and Corporate Services Ltd v Office of the Comptroller of Taxes (PC, 2019) (privilege against self-incrimination) • Volcafe Ltd v Cia Sud Americana de Vapores SA (SC, 2018) (burden of proof)
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Parnas, Josef. On psychosis: Karl Jaspers and beyond. Oxford University Press, 2013. http://dx.doi.org/10.1093/med/9780199609253.003.0014.
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Psychosis is one of the cardinal concepts of psychopathology (Jaspers), with an important descriptive use and frequent but unclear nosological connotations. Despite its central role in clinical psychiatry, it is only inadequately and vaguely addressed and articulated in the contemporary psychodiagnostic manuals. Typically, the descriptive use of this concept—as a ”break with reality”—is always infused with, and framed by pathogenetic hypotheses (e.g. ”weak ego-function” or ”brain disorder”). Because we are not in possession of any extraclinical index of psychosis, all definitions of”psychosis” and ”psychotic” remain on a vague, descriptive level and are often tautological. In particular, the attempts to define psychosis through the presence of delusions (or other ”psychotic symptoms”) only recapitulate the puzzle. This essay tries to identify a phenomenological commonality to such descriptions, examining the philosophical and clinical aspects of the concepts of”reality”, ”rationality” (theoretical and practical), ”reality testing”, ”intersubjectivity”, delusion, hallucination etc. It is concluded that ”psychosis” is a normative, context-sensitive, non-operationalizable concept, indicating a condition of ”radical irrationality”. This concept, although invaluable in clinical and legal work, is probably of only limited nosological (etiological) value.
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Rex, Ahdar, i Leigh Ian. Religious Freedom in the Liberal State. Oxford University Press, 2013. http://dx.doi.org/10.1093/acprof:oso/9780199606474.001.0001.
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Examining the law and public policy relating to religious liberty in Western liberal democracies, this book contains a detailed analysis of the history, rationale, scope, and limits of religious freedom from (but not restricted to) an evangelical Christian perspective. Focussing on the United Kingdom, the United States, Canada, New Zealand, Australia, and the European Convention on Human Rights it studies the interaction between law and religion at several different levels, looking at the key debates that have arisen. Divided into three parts, the book begins by contrasting the liberal and Christian rationales for and understandings of religious freedom. It then explores central thematic issues: the types of constitutional frameworks within which any right to religious exercise must operate; the varieties of paradigmatic relationships between organized religion and the state; the meaning of ‘religion’; the limitations upon individual and institutional religious behaviour; and the domestic and international legal mechanisms that have evolved to address religious conduct. The final part explores key subject areas where current religious freedom controversies have arisen: employment, education, parental rights and childrearing, controls on pro-religious and anti-religious expression, medical treatment, and religious group (church) autonomy.
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Murphy, Gretchen. New England Women Writers, Secularity, and the Federalist Politics of Church and State. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198864950.001.0001.
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Drawing on novels, poetry, correspondence, religious publications, and legal writing, this book offers a new account of women’s political participation in the process of religious disestablishment. Scholars have long known that eighteenth- and nineteenth-century American women wrote pious, sentimental stories, but this book uses biographical and archival methods to understand their religious concerns as entry points into the era’s debates about democratic conditions of possibility and the role of religion in a republic. Beginning with the early republic’s constitutional and electoral debates about the end of religious establishment and extending through the nineteenth century, Murphy argues that Federalist women and Federalist daughters of the next generation adapted that party’s ideals and fears by promoting privatized Christianity with public purpose. Harriet Beecher Stowe, Catharine Sedgwick, Lydia Sigourney, Judith Sargent Murray, and Sally Sayward Wood authorized themselves as Federalism’s literary curators, and in doing so they imagined new configurations of religion and revolution, faith and rationality, public and private. They did so using literary form, writing in gothic, sentimental, and regionalist genres to update the Federalist concatenation of religion, morality, and government in response to changing conditions of secularity and religious privatization in the new republic. Their project is shown to complicate received historical narratives of separation of church and state and to illuminate problems of democracy and belief in postsecular America.
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Foster, Caroline E. Global Regulatory Standards in Environmental and Health Disputes. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198810551.001.0001.
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Potentially global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and inferring a revised conception of sovereignty in an increasingly pluralistic global legal era. However, considered with regard to jurisprudential theory on relative authority, the legitimacy of the resulting ‘standards-enriched’ international law remains open to question. Procedurally, although they are well-placed to provide valuable input, international courts and tribunals should not be the only fora in which these standards are elaborated. Substantively, challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law’s legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.
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Dusenbury, David Lloyd. Nemesius of Emesa on Human Nature. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780198856962.001.0001.
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Nemesius of Emesa’s On Human Nature (De Natura Hominis) is the first Christian anthropology. Written in Greek, circa 390 CE, it was read in half a dozen languages—from Baghdad to Oxford—well into the early modern period. Nemesius’ text circulated in two Latin versions in the centuries that saw the rise of European universities, shaping scholastic theories of human nature. During the Renaissance, it saw a flurry of print editions, helping to inspire a new discourse of human dignity. This is the first monograph in English on Nemesius’ treatise. On the interpretation offered here, the Syrian bishop seeks to define the human qua human. His early Christian anthropology is cosmopolitan. ‘Things that are natural’, he writes, ‘are the same for all’. In his pages, a host of texts and discourses—biblical and medical, legal and philosophical—are made to converge upon a decisive tenet of Christian late antiquity: humans’ natural freedom. For Nemesius, reason and choice are a divine double-strand of powers. Since he believes that both are a natural human inheritance, he concludes that much is ‘in our power’. Nemesius defines humans as the only living beings who are at once ruler (intellect) and ruled (body). Because of this, the human is a ‘little world’, binding the rationality of angels to the flux of elements, the tranquillity of plants, and the impulsiveness of animals. This book traces Nemesius’ reasoning through the whole of On Human Nature, as he seeks to give a long-influential image of humankind both philosophical and anatomical proof.