P.G. McHugh
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780198252481
- eISBN:
- 9780191710438
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198252481.001.0001
- Subject:
- Law, Philosophy of Law, Legal History
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 ...
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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.Less
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.
James E K Parker
- Published in print:
- 2015
- Published Online:
- November 2015
- ISBN:
- 9780198735809
- eISBN:
- 9780191799778
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198735809.001.0001
- Subject:
- Law, Public International Law, Philosophy of Law
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 ...
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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.Less
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.
Michael S. Moore
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199599509
- eISBN:
- 9780191594656
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599509.001.0001
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
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 ...
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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.Less
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.
Luís Duarte d'Almeida
- Published in print:
- 2015
- Published Online:
- May 2015
- ISBN:
- 9780199685783
- eISBN:
- 9780191765766
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685783.001.0001
- Subject:
- Law, Philosophy of Law, Constitutional and Administrative Law
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 ...
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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.Less
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.
Fernanda Pirie
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199696840
- eISBN:
- 9780191751110
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199696840.001.0001
- Subject:
- Law, Comparative Law, Philosophy of 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 ...
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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.Less
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.
Nicole Roughan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199671410
- eISBN:
- 9780191751783
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199671410.001.0001
- Subject:
- Law, Philosophy of 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 ...
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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.Less
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.
Basak Çali
- Published in print:
- 2015
- Published Online:
- November 2015
- ISBN:
- 9780199685097
- eISBN:
- 9780191765377
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685097.001.0001
- Subject:
- Law, Public International Law, Philosophy of Law
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 ...
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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.Less
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.
Joseph Raz
- Published in print:
- 1979
- Published Online:
- March 2012
- ISBN:
- 9780198253457
- eISBN:
- 9780191681400
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198253457.001.0001
- Subject:
- Law, Philosophy of Law
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 ...
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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.Less
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.
Robert P. George (ed.)
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267904
- eISBN:
- 9780191683404
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267904.001.0001
- Subject:
- Law, Philosophy of Law
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 ...
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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?Less
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?
Jesse Wall
- Published in print:
- 2015
- Published Online:
- August 2015
- ISBN:
- 9780198727989
- eISBN:
- 9780191794285
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198727989.001.0001
- Subject:
- Law, Philosophy of Law, Human Rights and Immigration
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 ...
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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.Less
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.
