Author: David Campbell
Release Date: 2016-12-05
Wesley Newcomb Hohfeld, born in 1879, died prematurely in 1918. He left only a few law journal articles as his published work. His 'Fundamental Legal Conceptions', originally published as two articles in the 'Yale Law Journal' for 1913 and 1917 and left incompletely revised at his death is, however, one of the principal foundations of analytic jurisprudence. The analysis of rights that Hohfeld offers is still regularly cited and relied upon by both lawyers and philosophers, and it is treated as a source of insight into the nature of moral rights as well as the legal rights that were Hohfeld’s own focus of concern. Although some of his analytical distinctions were anticipated by earlier jurists, their insights were fragmentary and imperfect by comparison. Hohfeld’s systematic and exhaustive (yet concise) treatment is generally regarded as unsurpassed. This is not to say that he has not been criticized, but his book forms the essential starting point for any discussion of the nature and structure of rights. 'Fundamental Legal Conceptions' has long been difficult to obtain. This new edition makes this classic of analytic jurisprudence available with a comprehensive introduction by Dr. N.E. Simmonds of Corpus Christi, University of Cambridge, UK.
Author: Stefan Arnold
Publisher: Mohr Siebeck
Release Date: 2014-08-05
English summary: One of the consequences that developed in a paradigm based on the theory of a social contract is that distributive justice (iustitia distributiva) has almost no relevance in contract law. Stefan Arnold engages this paradigm and shows that distributive justice permeates contract law and shapes the subsequent communal justice (iustitia commutativa). Arnold therefore presents a theory of distributive justice as a legal perspective which looks beyond exchange relationships and considers the regulative capacity of contract law. In this way, contract is able to contribute to the public good in such areas as behavioral control, protection of the weak or the realization of the public interest. When distributive justice is joined by principles of contract law, the results are positive for autonomy and self-reliance. This work demonstrated the value of distributive justice for social laws such as laws dealing with tenancy, consumer protection and discrimination. German description: Einem vertragstheoretischen Paradigma zufolge ist die iustitia distributiva im Vertragsrecht nahezu ohne Bedeutung. Stefan Arnold greift dieses Paradigma an und zeigt, dass die iustitia distributiva das Vertragsrecht ebenso durchdringt und pragt wie die iustitia commutativa . Dazu entwickelt er eine Theorie der iustitia distributiva als Gerechtigkeitsperspektive, die uber das Austauschverhaltnis hinausblickt und die regulative Kapazitat des Vertragsrechts berucksichtigt. So kann das Vertragsrecht etwa zur Verhaltenssteuerung, zum Schwacherenschutz oder zur Verwirklichung von Allgemeinwohlbelangen beitragen. Die iustitia distributiva wird vom Postulat der Vertragsfreiheit flankiert, das Autonomie und Eigenverantwortung einfordert. Die Arbeit illustriert die Bedeutung der iustitia distributiva unter anderem anhand des sozialen Mietrechts, des Verbrauchervertragsrechts und des Diskriminierungrechts.
Author: E. Adamson Hoebel
Publisher: Harvard University Press
Release Date: 2009-07-01
A classic work in the anthropology of law, this book offered one of the first ambitiously conceived analyses of the fundamental rights and duties that are treated as law among nonliterate peoples (labeled "primitive" at the time of the original publication). The heart of the book is a description and analysis of the law of five societies: the Eskimo; the Ifugao of northern Luzon in the Philippines; the Comanche, Kiowa, and Cheyenne tribes of the western plains of the United States; the Trobriand Islanders of the southwest Pacific; and the Ashanti of western Africa. Hoebel's lucid analysis reveals the variety and complexity of these societies' political and legal institutions. It emphasizes their use of due process in adjudication and enforcement and highlights the importance of general explicit standards of conduct in these societies. In offering these detailed case studies of societies studied by other anthropologists, and in outlining an influential approach to the subject, it remains an illuminating book for both scholars and students.
English summary: Without the concept of agency, an economy based on the division of labor would not be possible. The Principles of European Contract Law, the Unidroit Principles of International Commercial Contracts and the Draft Common Frame of Reference have each made separate proposals for harmonizing the regulations pertaining to agency. Dominik Moser studies these regulatory models, exploring the extent to which the existence of an agency relationship must be revealed to the other party and the legal consequences of that agency. The author bases his study on the law in Germany, representing the continental European legal tradition, and the law in England, as a representative of the common law. He then compares the proposals for regulations, evaluating them according to their potential to solve practical legal problems while still balancing the interests of all the parties concerned. German description: Ohne die Stellvertretung ware eine arbeitsteilig organisierte Wirtschaft nicht moglich. In jungster Zeit erschienen mit den Principles of European Contract Law, den Unidroit Principles of International Commercial Contracts und dem Draft Common Frame of Reference drei unterschiedliche Vorschlage fur vereinheitlichte Stellvertretungsregelungen. Dominik Moser untersucht diese Modellregelungen hinsichtlich der Fragen, inwieweit das Vorliegen einer Stellvertretung der anderen Partei offenbart werden muss, und welche Rechtsfolgen sich hieraus ergeben. Dabei nimmt der Autor die Regelungen des deutschen und des englischen Rechts als Vertreter der kontinental-europaischen Rechtstradition einerseits und des Common Law andererseits zum Ausgangspunkt. Er vergleicht die Regelungsvorschlage und bewertet sie danach, ob sie interessengerechte Losungen fur die in der Rechtspraxis auftretenden Probleme bieten.
Unter Geltung des Trennungsprinzips droht der Erwerb des Grundstückskäufers in der Schwebephase zwischen Vertragsschluss und Übereignung an der Insolvenz des Verkäufers, an Zwangsvollstreckungsmaßnahmen in das verkaufte Grundstück oder an vertragswidrigen anderweitigen Verfügungen zu scheitern. Zur Kompensation dieser Risiken haben deutsches, englisches, schottisches und spanisches Recht vielfältige Sicherungsmechanismen entwickelt, die eine interessengerechte und funktionsfähige Erwerbsabwicklung gewährleisten sollen. Wiebke Voß analysiert, kategorisiert und bewertet rechtsvergleichend die Modelle der Erwerbssicherung und lotet aus, wie die Rechtsposition des derart geschützten Käufers in die Dichotomie der Vermögensrechte einzuordnen ist: Hat er noch ein Schuldrecht oder schon ein Sachenrecht inne oder handelt es sich bei der Erwerberstellung gar um eine hybride Zwischenrechtsform?
Author: Dinah L Shelton
Publisher: Edward Elgar Publishing
Release Date: 2014-09-26
Genre: Political Science
In this landmark text, Dinah L. Shelton offers an insightful overview of the current state of international human rights law: its norms, institutions and procedures, both global and regional. Providing an invaluable entry point to this complex area of
Author: F. Scott Kieff
Publisher: Cambridge University Press
Release Date: 2011-11-21
Intellectual property is a vital part of the global economy, accounting for about half of the GDP in countries like the United States. Innovation, competition, economic growth and jobs can all be helped or hurt by different approaches to this key asset class, where seemingly slight changes in the rules of the game can have remarkable impact. This book brings together diverse perspectives from the fields of law, economics, business and political science to explore the ways varying approaches to intellectual property can positively and negatively impact our economy and society. Employing approaches that are both theoretically rigorous and grounded in the real world, Perspectives on Commercializing Innovation is well suited for practising lawyers, managers, lawmakers and analysts, as well as academics conducting research or teaching in a range of courses in law schools, business schools and economics departments, at either the undergraduate or graduate level.
Author: L. Lindahl
Publisher: Springer Science & Business Media
Release Date: 2012-12-06
The present study which I have subtitled A Study in Law and Logic was prompted by the question of whether an investigation into law and legal systems could lead to the discovery of unrevealed fundamental patterns common to all such systems. This question was further stimulated by two interrelated problems. Firstly, could an inquiry be rooted in specifically legal matters, as distinct from the more usual writings on deontic logic? Secondly, could such inquiry yield a theory which would nevertheless embrace a strict and simple logical structure, permitting substantive conclusions in legal matters to be deduced from simple rules governing some basic concepts? Before the development of deontic logic, W. N. Hohfeld devoted his efforts to this question at the beginning of this century. However, with this exception, few jurists have studied the interrelation between law and logic projected in this way. Nevertheless, two great names are to be found, Gottfried Wilhelm Leibniz and Jeremy Bentham-both philo sophers with legal as weIl as logical training. Bentham's investigations of logical patterns in law have only recently attracted attention; and as for Leibniz, his achievements are still almost totally unexplored (his most important writings on law and logic have not even been translated from Latin). My initial interest in the question was evoked by Professor Stig Kanger. Although primarily a logician and philosopher, Stig Kanger has been interested also in the fundamentals of legal theory.
Author: Jan J.T. Srzednicki
Publisher: Springer Science & Business Media
Release Date: 2012-12-06
The general purpose of this book differs from those of most of the works found traditionally in the field of political philosophy. Firstly, the present approach is in no way prescriptive or normative, as the interest centres on explication rather than an evaluative assess ment of this, that or another type of arrangement, or act. 1 It will be clear that I am in complete disagreement with Gewirth when he claims that "The central concern of political philosophy is the moral evaluation of political power. " It seems obvious that the under standing of political and social forms of life, and a fortiori of political power, must come before its evaluation. This cannot be provided by moral assessment alone. Thus an analytical or explicative approach which promotes such understanding must come first, and must be the "central concern" of the appropriate philosophical discipline. This is not to say that moral assessment is illegitimate, nor even that it cannot be one of the concerns of political philosophy, but it is to deny that it can be central, even though it might be somebody's central interest. To the extent to which this book is successful it will provide an argu mentin my favour - if the job can be done, obviously it is of primary importance. But we should not assume that it cannot be done unless we can show that there is no separate sphere of political and/or social phenomena.
Author: W.L. Robison
Publisher: Springer Science & Business Media
Release Date: 2002-06-30
The legal essays by Michael Bayles in this collection display his commitment to utilitarianism both as a moral theory and an analytical device. A utilitarian must choose between the best of all possible alternatives and so must lay out the alternatives and thus their consequences carefully and completely. As it happens, there is no better way of understanding why something is as it is in the law, and no better way to lay the foundations for criticism and improvement, than to lay out what the alternatives are, carefully distinguishing them, their justifications, and their implications for changing other areas of the law and for changing our relation to the law. Bayles was a master at such work, and each essay thus repays careful study for anyone concerned about the law. The essays cover a wide variety of topics, from contract law to the criminal law, from torts to theory, and form a natural set. Laying out the alternatives in one area makes it much clearer how and why alternatives in other areas are acceptable or required. Interconnections within the legal system as a whole not readily visible when studying one area of the law become obvious when several are laid out side-by-side using the analytical skill required by a good utilitarian.
Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.
Author: Gerald Cushing MacCallum
Publisher: Univ of Wisconsin Press
Release Date: 1993
In the last years of his life, Gerald C. MacCallum, Jr., defied illness to continue his work on the philosophy of law. This book is a monument to MacCallum's effort, containing fourteen of his essays, five of them published here for the first time. Two of those previously published are widely admired and reprinted: "Legislative Intent," certainly one of the best papers ever published on its topic, and "Negative and Positive Freedom," which offered a new way of looking at a distinction that had been canonical for the last two centuries. To complete MacCallum's unfinished pieces, Marcus G. Singer and Rex Martin painstakingly consulted MacCallum's notes for planned revisions. MacCallum discusses legal reasoning, the application of rules, the interpretation of statutes and constitutional provisions, and the relation of these matters to morality and justice. In the last decade of his working life, he became greatly concerned with the interrelated themes of integrity, autonomy, conscience, and violence. He wished to relate competition to morality and justice to adversarial systems of law. These themes are woven together in Legislative Intent and constitute the main subject of some of the essays. MacCallum was engaged in a constant search for truth and understanding, and in his life and work lived up to Emerson's vision of the "American Scholar" as a "human being thinking." These essays are informed by the author's deep curiosity, penetrating intelligence, wide knowledge, and outstanding character. They will be treasured wherever these characteristics and true philosophy are treasured.