Oxford Studies in Philosophy of Law Volume 4

This volume provides a forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning); the philosophical foundations of specific areas of law (from criminal law to evidence to international law); the history of legal philosophy; and related philosophical topics that illuminate the problems of legal theory.

This volume provides a forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning), the philosophical foundations of specific areas of law (from criminal law to evidence to international law), the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory.


2000 ◽  
Vol 31 (4) ◽  
pp. 901
Author(s):  
Sandra Petersson

This article is a book review of J M Kelly A Short History of Western Legal Theory (reprint, Clarendon Press, Oxford, 1997) (466 + xvi pages, $75). Kelly's aim was to make the reader see jurisprudence in its historical setting, something that Petersson agrees was done well. The book discusses the history of Western legal theory through the ages, tracing key themes including Theory of the State, Validity of Law, Rule of Law, Nature and Purpose of Law, Natural Law, Equality, Property, Equity, Criminal Law and Punishment, and International Law. Petersson notes that Kelly's work is notably non-Anglocentric. However, Petersson comments on Kelly's failure to treat positivism as its own separate conception of law, as well as Kelly's omission of feminist legal theories. 


Author(s):  
Douglas Lawrence

This chapter argues that the development of the international law of aggression has served to destabilize a dominant narrative based on the distinction between criminal and enemy. The criminal/enemy dyad has long been central to the western legal tradition. By attending to how rival traditions of legal theory have understood the dyad, the chapter illustrates how the criminalization of aggression marks one of the most distinctive developments in the history of international criminal law. This development, however, has proven problematic, as the criminalization of aggression has worked to deconstruct the traditional boundary between criminal and enemy, volatizing the very distinction between war and policing. The criminalization of aggression marks, then, something distinct from simply a growth of international law; it signals a fundamental shift that has left the relations between jus ad bellum and jus in bello in an uncertain state.


AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 103-105
Author(s):  
Jean d’Aspremont

When we think of “effectivity,” we usually come to think of a pragmatic and factual construction. The idea of effectivity, however, is anything but concrete and raises a variety of questions of legal theory, legal philosophy, epistemology, and theory of knowledge. It should also be highlighted that from a linguistic standpoint the word effectivity does not exist in British English. The attachment of the International Court of Justice to her Majesty’s English explains that the World Court uses the French word (effectivité) when it seeks to refer to effectivity. These linguistic debates, however, matter less than the semantics and especially less than the consensus that effectivity ought to be opposed to “effectiveness.”


2016 ◽  
Vol 10 (2) ◽  
pp. 69-85 ◽  
Author(s):  
Sam MCFARLAND ◽  
Katarzyna HAMER

Raphael Lemkin is hardly known to a Polish audiences. One of the most honored Poles of theXX century, forever revered in the history of human rights, nominated six times for the Nobel PeacePrize, Lemkin sacrificed his entire life to make a real change in the world: the creation of the term“genocide” and making it a crime under international law. How long was his struggle to establishwhat we now take as obvious, what we now take for granted?This paper offers his short biography, showing his long road from realizing that the killing oneperson was considered a murder but that under international law in 1930s the killing a million wasnot. Through coining the term “genocide” in 1944, he helped make genocide a criminal charge atthe Nuremburg war crimes trials of Nazi leaders in late 1945, although there the crime of genocidedid not cover killing whole tribes when committed on inhabitants of the same country nor when notduring war. He next lobbied the new United Nations to adopt a resolution that genocide is a crimeunder international law, which it adopted on 11 December, 1946. Although not a U.N. delegate – hewas “Totally Unofficial,” the title of his autobiography – Lemkin then led the U.N. in creating theConvention for the Prevention and Punishment of the Crime of Genocide, adopted 9 December, 1948.Until his death in 1958, Lemkin lobbied tirelessly to get other U.N. states to ratify the Convention.His legacy is that, as of 2015, 147 U.N. states have done so, 46 still on hold. His tomb inscriptionreads simply, “Dr. Raphael Lemkin (1900–1959), Father of the Genocide Convention”. Without himthe world as we know it, would not be possible.


Author(s):  
Dan Jerker B. Svantesson

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.


2021 ◽  
pp. 48
Author(s):  
Aleksei V. Stovba

This article is a response to the criticism of Prof. O.V. Martyshin in the journal “State and Law” (2020. No. 12). The author has defended the thesis that there is no doubt as to whether the application of new terminology and philosophical methods of legal reasoning borrowed from contemporary philosophical trends and propagated by the representatives of the non-classical Philosophy of Law has brought positive results in Philosophy of Law and General legal theory.


Author(s):  
Luís Duarte d’Almeida

Ongoing discussions among international lawyers on defences in state responsibility have close analogies with debates in two other fields: debates in general legal theory on defeasibility in law, and debates in criminal law theory (and philosophy) on the elements of criminal responsibility. The similarities are not surprising. But it is striking how little cross-fertilization there seems to have been. For jurisprudence and criminal law scholars have developed a number of points and distinctions that international law theorists working on defences should find helpful. This chapter illustrates these claims. Section 2 looks at defences from the point of view of general legal theory, and section 3 does the same from the point of view of criminal law theory, recommending specific solutions to particular problems. Section 4 then shows how these contributions can help to answer some persistent questions surrounding defences in the law of state responsibility.


2016 ◽  
Vol 1 (1) ◽  
pp. 1 ◽  
Author(s):  
Erlyn Indarti

Paradigm represents a worldview that defines, for its holder, the nature of theworld, the individual's place in it, and the range of possible relationships to thatworld and its parts. It comprises of four main elements, i.e. ontology, epistemology,methodology, and methods. Within the discipline of law, there seem to be two setsof gaps separating philosophy of law's building blocks that dissociate, first, legalpractice from legal theory and, second, legal science from legal philosophy. It isthe purpose of this article, with the help of paradigmatic insight, to bridge thosegaps.Keywords: law, philosophy of law, paradigm, paradigmatic study of law


Author(s):  
Orford Anne

This chapter re-examines the history of free trade and its relationship to international law. It locates contemporary trade agreements within a larger story about the relation between the state, the market, and the social; explores why it is useful to place current trade agreements within a longer historical trajectory; offers a brief narrative of how the concept of free trade has moved across a two-hundred-year period since the late eighteenth century; and concludes that concepts such as free trade (and related concepts such as discrimination, market distortion, protection, and subsidies) are the product of political struggles over particular ways of understanding the world, justifying entitlements to resources, explaining why some people should profit from the labour of others, and legitimizing the exercise of power.


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