The premise of this book is that a shift of vantage will help elucidate various important issues of law related to judging, to bills of rights and to more abstract questions of legal philosophy. The work begins by focussing on the jurisprudential issue of whether it is desirable to keep separate the demands of law and of morality and uses the device of changing vantages to elucidate the many issues that fall under that aegis. This is followed by a consideration of how judges ought to do their job when interpreting and whether the rule of law ideal differs from rule by judges. The last part of the book focuses explicitly on bills of rights. Building on the earlier parts, the author uses his device of shifting vantages to provide insights into how these instruments affect democratic decision-making and from which perspectives they will look attractive and unattractive. Written in a clear, accessible and engaging style, the book demonstrates that vantage point is a key criterion affecting how one understands and evaluates, firstly, some of the theoretical debates in jurisprudence and then, secondly, what judges are doing and whether a bill of rights is desirable or not.

In this classic study, Alan Brudner investigates the basic structure of the common law of transactions. For decades, that structure has been the subject of intense debate between formalists, who say that transactional law is a private law for interacting parties, and functionalists, who say that it is a public law serving the collective ends of society. Against both camps, Brudner proposes a synthesis of formalism and functionalism in which private law is modified by a common good without being subservient to it. Drawing on Hegel's legal philosophy, the author exhibits this synthesis in each of transactional law's main divisions: property, contract, unjust enrichment, and tort. Each is a whole composed of private-law and public-law parts that complement each other, and the idea connecting the parts to each other is also latently present in each. Moreover, Brudner argues, a single narrative thread connects the divisions of transactional law to each other. Not a row of disconnected fields, transactional law is rather a story about the realization in law of the agent's claim to be a dignified end-master of its body, its acquisitions, and the shape of its life. Transactional law's divisions are stages in the progress toward that goal, each generating a potential developed by the next. Thus, contract law fulfils what is incompletely realized in property law, negligence law what is germinal in contract law, public insurance what is seminal in negligence law, and transactional law as a whole what is underdeveloped in public insurance. The end point is the limit of what a transactional law can contribute to a life sufficient for dignity. Reconfigured and expanded with a contribution by Jennifer Nadler, The Unity of the Common Law stands out among contemporary theories of private law in that it depicts private law as purposive without being instrumental and as autonomous without being emptily formal.

Publisher Description

This collection contributes to the wider theoretical debate concerning the movement of law and legal norms by engaging with concrete examples of legal diffusion in jurisdictions as diverse as Albania, the Czech Republic, Poland and Kuwait. The volume is international, multi-disciplinary and multi-methodological in approach and brings together scholars from law and social science with experience in mixed and hybrid jurisdictions. The book provides timely new insights and a comprehensive illustration of the theoretical debates concerning the diffusion of laws and norms in terms of both process and form.

This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts' resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the 'judicialisation turn' on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions.

Reprint of the original, first published in 1857.

The relationship between Islamic law and international human rights law has been the subject of considerable, and heated, debate in recent years. The usual starting point has been to test one system by the standards of the other, asking is Islamic law 'compatible' with international human rights standards, or vice versa. This approach quickly ends in acrimony and accusations of misunderstanding. By overlaying one set of norms on another we overlook the deeply contextual nature of how legal rules operate in a society, and meaningful comparison and discussion is impossible. In this volume, leading experts in Islamic law and international human rights law attempt to deepen the understanding of human rights and Islam, paving the way for a more meaningful debate. Focusing on central areas of controversy, such as freedom of speech and religion, gender equality, and minority rights, the authors examine the contextual nature of how Islamic law and international human rights law are legitimately formed, interpreted, and applied within a community. They examine how these fundamental interests are recognized and protected within the law, and what restrictions are placed on the freedoms associated with them. By examining how each system recognizes and limits fundamental freedoms, this volume clears the ground for exploring the relationship between Islamic law and international human rights law on a sounder footing. In doing so it offers a challenging and distinctive contribution to the literature on the subject, and will be an invaluable reference for students, academics, and policy-makers engaged in the legal and religious debates surrounding Islam and the West.

Cover -- Half-title -- Title -- Copyright -- Contents -- Acknowledgments -- Note on Transliteration and Spelling -- Map of Morocco -- Introduction -- 1 The Legal World of Moroccan Jews -- 2 The Law of the Market -- 3 Breaking and Blurring Jurisdictional Bound aries -- 4 The Sultan's Jews -- 5 Appeals in an International Age -- 6 Extraterritorial Expansion -- 7 Colonial Pathos -- Epilogue -- Notes -- Bibliography -- Index -- A -- B -- C -- D -- E -- F -- G -- H -- I -- J -- K -- L -- M -- N -- O -- P -- Q -- R -- S -- T -- U -- V -- W -- Z