Roger A. Shiner – författare
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1 932 kr
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Norm and Nature deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy - law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. It has three theses. First, that the opposition to positivism is based on acceptance of, rather than rejection of, claims made by positivism. Secondly, that the conflict between positivism and anti-positivism is irresolvable and finally, that the understanding of why this is so is the key to the understanding of the nature of law. Tension between formal and substantive considerations comprises the essence of law. The central theses presuppose that anti-positivism or natural law theory is defensible as an account of the nature of law. More than half the book, therefore, is a criticism of the prevailing orthodoxy of legal positivism and a defence of an anti-positivist view, making Norm and Nature important not only for the originality of its central theses, but also for its critique of positivism and for the thoroughness of its examination of contemporary legal thought.
1 592 kr
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The U.S. Supreme Court extended constitutional protection to commercial expression or speech in 1976. The European Court of Human Rights and the Supreme Court of Canada subsequently did likewise. Historically, however, as Chief Justice Rehnquist memorably remarked in dissenting from the 1976 decision, freedom of expression relates to public decision-making as to political, social, and other public issues, rather than the decision of a particular individual as to whether to purchase one or another kind of shampoo. For all that, courts are now granting constitutional protection to the commercial advertizing of organizations such as tobacco manufacturers, breweries, and discount liquor stores.In this book, Roger Shiner subjects to critical examination the history of and reasoning behind the extension to commercial expression of the principles of freedom of expression. He examines the institutional history of freedom of commercial expression as a constitutional doctrine, and argues that the history is one of ad hoc, not logical, development. In examining the arguments used in support of freedom of commercial expression, he shows that even from within the borders of liberal democratic theory, constitutional protection for commercial expression is not philosophically justified. Commercial corporations cannot possess an original autonomy right to free expression. Moreover, the claim that there is a hearers' right to receive commercial expression which advertisers may borrow is invalid. Freedom of commercial expression does not fit the best available models for hearers' rights. Regulation of commercial expression is not paternalistic. The free flow of commercial information is not automatically a good, and in any case commercial expression rarely in fact involves information.