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This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation of Ireland and settlement of the New World to the end of the 20th century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the 17th and 18th centuries. It then focuses on North America and Australasia from their early national periods in the 19th century to the modern era. The historical basis of relations is described through the key, enduring, but constantly shifting questions of sovereignty, status and, more latterly, self-determination. Throughout the history of engagement with common law legalism, questions surrounding the settler-state's recognition — or otherwise — of the integrity of the tribe have recurred. These issues were addressed in many and varied imperial and colonial contexts, but all jurisdictions have shared remarkable historical parallels which have been accentuated by their common legal heritage. The same questioning continues today in the renewed and controversial claims of the tribal societies to a distinct constitutional position and associated rights of self-determination. The author examines the political resurgence of aboriginal peoples in the last quarter of the 20th century. A period of ‘rights-recognition’ was transformed into a second-generation jurisprudence of rights-management and rights-integration. From the 1990s onwards, aboriginal affairs have been driven by an increasingly rampant legalism.

Between September 2006 and December 2008, Simon Bikindi stood trial at the International Criminal Tribunal for Rwanda (ICTR), accused of inciting genocide with his songs. Bikindi’s trial was unprecedented. Never before had an international court or tribunal been called upon to determine a musician’s culpability for acts of genocide. This book explores how the ICTR went about that difficult task. In doing so, however, it takes a particular interest in questions of sound and listening, which it is argued have been seriously neglected in contemporary legal scholarship. One half of the book is addressed to the Tribunal’s ‘sonic imagination’. How did the Tribunal conceive of Bikindi’s songs for the purposes of judgment? How did it understand the role of radio and other media in their transmission? Why? And with what consequences for Bikindi? The other half of the book is addressed to how such concerns manifested themselves acoustically in court. Bikindi’s was a ‘musical trial’, as one judge observed. Recordings of his songs were played regularly throughout. Witnesses including Bikindi himself frequently sang. Indeed, at his appeals hearing Bikindi even sang his final statement. And all the while, judges, barristers, and witnesses alike spoke into microphones and listened on through headphones. As a result, the Bikindi case offers an ideal opportunity to explore what this book calls the ‘judicial soundscape’. Though addressed to a single case, the book’s most important innovation is to open up the field of sound to jurisprudential inquiry. Ultimately, it is an argument for a specifically acoustic jurisprudence.

This book seeks illumination of three aspects of Anglo-American criminal law by the philosophy of action. These are, first, the general requirement that an accused perform some voluntary act before he can be convicted of crime; second, that that voluntary act have the properties marking it as one of the kinds of acts prohibited by statute, what lawyers call the ‘actus reus’ of crimes; and third, the double jeopardy requirement that no one should be prosecuted or punished more than once for doing but one act instantiating but one offence. These three requirements are seen as part of the ‘general part’ of the criminal law, the part that applies to all crimes and that gives the criminal law a unified structure. As such they aid both the efficient drafting of a criminal code by the legislature and the application/interpretation of criminal codes by courts. The theory of action defended in the book – and from which illumination of the criminal law is sought – in a version of the family of theories known as causal theories of action. The thesis is that actions are those bodily movements caused by volitions when those volitions have those movements as their object, and nothing else. The criminal law's voluntary act requirement is then seen as the requirement that there be such an act. Omissions, states a person is in, thoughts, and involuntary bodily movements such as reflex reactions, are not acts by such a causal theory. The criminal law's actus reus requirement is seen as the requirement that a voluntary act must possess those causal or other properties definitive of the types of action prohibited by a criminal code. And the criminal law's double jeopardy requirements is seen as a conjunctive requirement: first, that no one be punished for the same kind of action, where the identity of act-types is governed by the kinds of acts morality makes wrong; unless the actor did that act more than once, where the identity of act-tokens is governed by the theory of action defended throughout the book. The philosophy of action illuminates the criminal law in these three ways because of certain moral theses, which the book also defends; that criminal liability both does and should track moral responsibility; that moral responsibility exists principally for what we do rather than for who we are, what we think, or what we fail to prevent; that actions causing harms are more blameworthy than actions that only risk or attempt such harms; and that punishment should be in proposition to the number and degree of wrong(s) done.

You find yourself in a court of law, accused of having hit someone. What can you say to avoid conviction? One thing you can do is simply to deny the accusation: ‘No’, you claim, ‘I didn’t do it.’ But suppose you did do it. You may then give a different answer. ‘Yes, I hit him’, you grant, ‘but it was self-defence’; or ‘Yes, but I was acting under duress.’ To answer in this way—to offer a ‘Yes, but… ’ reply—is to hold that your particular wrong was committed in exceptional circumstances. Perhaps it is true that, as a rule, wrongdoers ought to be convicted. But in your case the court should set the rule aside. You should be acquitted. Within limits, the law allows for exceptions. But how do we draw the line between a rule and its exceptions? This is a long-debated question with important practical consequences, but legal theorists have found it surprisingly difficult to answer. This book tackles this persistent puzzle by offering a new, proof-based account of exceptions and their role in legal reasoning. It clarifies the relationship between legal defences and the allocation of burdens of proof, discusses the structure of legal rules and the interplay of claims and answers in the legal process, and sheds new light on the offence/defence distinction in criminal law.

Questions about the nature of law, its relationship with custom, and the distinctive form of legal rules, categories, and reasoning, are placed at the centre of this book. The book considers contemporary debates on human rights and new forms of property, and also delves into the rich corpus of texts and codes studied by legal historians, classicists, and orientalist scholars. Studies of the great legal systems of ancient China, India, and the Islamic world, unjustly neglected by anthropologists, are examined alongside forms of law created on their peripheries. The costumes of medieval Europe, the codes drawn up by tribal groups in Tibet and the Yemen, village laws on both sides of the Mediterranean, and the intricate codes of saga in Iceland provide rich empirical detail for the book's analysis of the cross-cultural importance of the form of law, as text or rule, and the relative marginality of its functions as an instrument of government or foundation of social order. Examples shed new light upon the interrelations and distinctions between law, custom, and justice. Gradually an argument unfolds concerning the tensions between legalistic thought and argument, and the ideological or aspirational claims to embody justice, morality, and religious truth which lie at the heart of what we think of as law.

This book offers a novel theory of legitimate authority to explain interactions and relationships between state, transnational, international, or other pluralist legal orders. It argues that such plurality of law should be explained and evaluated by reference to plurality of legitimate authority, rather than formal doctrines or constitutional rules which are likely to be overlapping or even conflicting. This book argues, however, that existing state-centric accounts of authority cannot adequately explain plurality of legitimate authority – the presence of multiple legitimate authorities over the same subjects. Instead, this book presents a pluralist account of authority, in which overlap and interaction between authorities generates relativity. It offers a full theory of ‘relative authority,’ in which legitimate authority is shared or interdependent - between states, regional/international bodies, transnational orders or sub-state governments - and in which relationships between authorities are conditions of their legitimacy. This book then examines the relative authority account’s implications for understanding international and transnational law, European constitutional pluralism, and inter-authority relationships inside the state. It argues that the relative authority account can be used to both explain abstract principles governing inter-authority relationships in each of these fields, and to evaluate any specific inter-authority relationships that they entail. To illustrate that application, the book concludes with a full-scale case study of inter-authority relationships between state and indigenous authorities in New Zealand.

This book tackles an old, but ever relevant question: does international law enjoy legal authority over domestic orders? If so, what is the form and extent of the authority of international law? The book answers the first question in the positive. International law enjoys authority over domestic political and judicial organs. Such authority, however, has sui generis characteristics. It may not be conclusive authority. It may also not demand blind obedience. What international law demands at the very least is minimalist deference. The book answers the second question by holding that each and every international law does not make identical claims to authority. What form and extent of authority international law enjoys depends on whether a particular international law imposes a strong, a weak, or a rebuttable duty. The duty of a domestic judge and politician is to reflectively ask and engage with what kind of a duty she is engaged in when bringing the international law’s authority back home. The book has a decidedly practice-based and doctrinal approach to the questions it sets for itself. It demonstrates that realists, rationalists, and more recently democratic theorists have long attacked international lawyers. It is time to respond by offering a defence of the authority of international law and how it functions.

This revised edition of one of the classic works of modern legal philosophy, first published in 1979, represents the author's contribution which has had an enduring influence on philosophical work on the nature of law and its relation to morality. The new edition includes two previously uncollected essays and a new introduction from the author.

This collection of original essays from distinguished legal philosophers offers a challenging assessment of the nature and viability of legal positivism, an approach to legal theory that continues to dominate contemporary legal theoretical debates. To what extent is the law adequately described as autonomous? Should legal theorists maintain a conceptual separation of law and morality?

In the past few decades, economic analysis of law has been challenged by a growing body of experimental and empirical studies that attest to prevalent and systematic deviations from the assumptions of economic rationality. While the findings on bounded rationality and heuristics and biases were initially perceived as antithetical to standard economic and legal-economic analysis, over time they have been largely integrated into mainstream economic analysis, including economic analysis of law. Moreover, the impact of behavioral insights has long since transcended purely economic analysis of law: in recent years, the behavioral movement has become one of the most influential developments in legal scholarship in general. Behavioral Law and Economics offers a state-of-the-art overview of the field. The book surveys the entire body of psychological research underpinning behavioral analysis of law, and critically evaluates the core methodological questions of this area of research. The book then discusses the fundamental normative questions stemming from the psychological findings on bounded rationality, and explores their implications for establishing the aims of legislation, and the means of attaining them. This is followed by a systematic and critical examination of the contributions of behavioral studies to all major fields of law—property, contracts, consumer protection, torts, corporate, securities regulation, antitrust, administrative, constitutional, international, criminal, and evidence law—as well as to the behavior of key players in the legal arena: litigants and judicial decision-makers.

When part of a person’s body is separated from them, or when a person dies, it is unclear what legal status the item of bodily material ought to obtain. This book develops a way for the law to address disputes over the use and storage of bodily material that, contrary to the current trend, resists the application of property law. The solution lies in developing a tort that is structurally akin to the common law right to privacy that, alongside the recognition of property rights in some instances, is able to adequately protect interests that arise in bodily material. This recommendation is developed through two main inquiries. First, the book assesses when a person ought to be able to possess, control, use, or profit from bodily material. Emerging from this assessment are two sets of values that arise in bodily material. Bodily material may be valuable because it retains a functional unity with the body or remains as the medium of social experience, and bodily material may be valuable as a material resource that is in short supply. Second, the book assesses whether property law represents the most appropriate structure of rights and duties to protect the entitlements that a person may exercise in bodily material. This inquiry identifies the conceptual and structural features of property law and identifies the limits to its appropriate application. As part of this analysis, an alternative to property law is developed with reference to the right to bodily integrity and the right to privacy.

This book develops ideas on some of the central questions in practical philosophy: legal, political, and moral. It provides an overview of the author's work on jurisprudence and the nature of law in the context of broader questions in the philosophy of practical reason. The book opens with a discussion of methodological issues, focusing on understanding the nature of jurisprudence, asking how the nature of law can be explained, and how the success of a legal theory can be established. The book then addresses central questions on the nature of law, its relation to morality, the nature and justification of authority, and the nature of legal reasoning. It explains how legitimate law, while being a branch of applied morality, is also a relatively autonomous system, which has the potential to bridge moral differences among its subjects. The book offers responses to some critical reactions to the author's theory of authority, adumbrating and modifying the theory to meet some of them. The final part of the book brings together for the first time the author's work on the nature of interpretation in law and the humanities. It includes a new chapter explaining interpretive pluralism and the possibility of interpretive innovation.

Judges spend their public lives in courtrooms. They speak to the public through their judgments. But senior judges are frequently invited to contribute to professional, judicial, or academic conferences or publications, on whatever topic engages the attention of the audience at the time. This book contains a selection of the essays and addresses written or given by the present Senior Law Lord (as a Queen's Bench judge, Lord Justice of Appeal, Master of the Rolls, and the Lord Chief Justice of England and Wales) over the last 15 years or so, touching on a wide range of legally related topics.

This book explores the canon law of the Roman Catholic Church from a comparative perspective. The Introduction to the book presents historical examples of antinomian and legalistic approaches to canon law. It discusses these approaches as threats to the rule of law in the Church, and describes the concept of the rule of law in the thought of various Anglo-American legal theorists. Chapter One offers an overview of canon law as the “home system” in this study. The remaining chapters consider antinomian and legalistic approaches to the rule of law in light of three specific issues: the sexual abuse crisis, ownership of church property, and the denial of Holy Communion to Catholic public officials. Chapters Two and Three discuss the failure of the rule of law as a result of antinomian and legalistic approaches to the sexual abuse crisis. Chapters Four and Five compare the concept of property in canon law with that of liberal political theory; they discuss the ownership of parish property in light of diocesan bankruptcies, the relationship between church property and the law of the secular state, and the secularization of Catholic institutions and their property. Chapters Six and Seven raise the indeterminacy claim with regards to canon law and the arguments for and against the denial of Holy Communion to Catholic public officials. Although the three issues arise in the context of the United States, they raise broader theoretical issues about antinomianism, legalism, and the rule of law.

This book is about the role causation plays in the attribution of both moral responsibility and legal liability (in the law of crimes, torts, and to a lesser extent, contracts). The book strips away many of the usages of the word ‘causation’ in law and legal theory, on the grounds that such usages have little to do with causation itself. What remains is the law's use of ‘causation’ to name a natural relation that is at the heart of both ordinary and scientific explanations of the world. Some normative defense is offered as to why causation in this sense is a proper basis for assessing degrees of both culpability and permissibility in morality and also in law. A more extended metaphysical defense is also offered, as to the nature of the causal relation and as to the nature of the things related by the causal relation. This normative and metaphysical analysis is used as the springboard from which to critique much of what the law currently says about causation, including the law's counterfactual test for cause in fact, its notions of intervening cause, foreseeability, harm within the risk, accomplice liability, the causal status of omissions and of non-omissive allowings, and more besides. The result is a rethinking of causation's nature and role in our legal and moral practices of assigning blame and responsibility.

This text is an updated and extended second edition supporting the findings of its well-known predecessor which claimed that courts employ common-sense notions of causation in determining legal responsibility.

Coercion and Responsibility in Islam is an exploration of how classical Muslim theologians and jurists belonging to four different intellectual traditions reasoned about the issues coercion raises about responsibility for action. It looks at four problems: whether the absence of coercion or compulsion is a condition for moral agency, how the law ought to define what is coercive, coercion’s effect on the legal validity of speech acts (such as sales and divorces), and its effects on moral and legal responsibility in the cases of rape and murder. Through a comparative and diachronic examination of the reasoning underpinning the discussion of these issues, the book suggests a new model for the analysis of ethical reasoning characterized by two features: the existence of a fairly technical language of moral deliberation supported by intellectual traditions and a social tolerance for a plurality of such traditions that causes competition between them. The model seeks to explain how membership in an intellectual tradition, competition with scholars of other traditions, trans-cultural norms that structure a given moral problem, and contingent features such as the styles of reasoning that dominate a region best explain the content and historical development of argumentation on ethical issues. The book also compares Muslim discourses on coercion with the debates among modern Anglo-American theorists. The comparison yields several insights, the most significant of which is the finding of substantial similarity in the way medieval Muslim and modern Western intellectuals grappled with the case of coerced homicide.

COERCION AND THE NATURE OF LAW argues that it is a conceptually necessary condition for something to count as a system of law according to our conceptual practices that it authorizes the imposition of coercive sanctions for violations of some mandatory norms governing non-official behavior (the Coercion Thesis). The book begins with an explication of the modest approach to conceptual analysis that is deployed throughout. The remainder of the book is concerned to show that an institutional normative system is not reasonably contrived to do anything that law must be able to do for us to make sense of why we adopt systems of law to regulate non-official behavior unless we assume that mandatory norms governing that behavior are backed by the threat of a sovereign; an institutional normative system that satisfies every other plausible existence condition for law is not reasonably contrived to give rise to either objective or subjective first-order motivating reasons to comply with mandatory norms governing non-official behavior unless they are backed by the threat of a coercive sanction. Law’s presumed conceptual normativity can be explained only by the Coercion Thesis.

Law is a lasting social institution but it must also be open to change. While Volume I looked at human rights and European law, the focus here is on how the law operates within England and Wales. Section A looks at the way judge-made law responds to the changing needs of society, arising from changing social values, constitutional shifts or the need for a better legal framework in a particular field. Section B deals with simplification of the law and its systematic reform, including codification. For the past 50 years these tasks have been central to the work of the Law Commission, whose contribution is discussed from the perspective of a former Chairman. Section C looks at tomorrow’s judiciary. The accountability of judges has been an area of considerable discussion recently, and one aspect that needs greater attention is the accessibility of judgment writing. The composition of the judiciary also has to change over time, without losing core values like judicial independence, which can be traced back over history. The author argues that the vision today should be one of greater diversity. Apart from a need for more women and ethnic minorities in the judiciary, diverse perspectives more generally lead to better decision-making by the courts. This volume concludes by addressing the legal profession of the future and includes a short piece describing the author’s personal experiences as a woman lawyer and offering some advice to budding barristers.

This book is an introduction to a general study of legal systems, that is, to the study of the systematic nature of law, and the examination of the presuppositions and implications underlying the fact that every law necessarily belongs to a legal system (the English, or German, or Roman, or Canon Law, or some other legal system). A comprehensive investigation may result in what could be called a theory of legal system. Such a theory is general in that it claims to be true of all legal systems. If it is successful it elucidates the concept of a legal system, and forms a part of general analytic jurisprudence. The approach to the subject adopted here is in part historical, and starts from a critical examination of previous theories. The constructive part of the work is analytical in character, and the authors examined in the historical part all belong to the analytic school of jurisprudence.