Clarendon Law Series – serie

Fifty years on from its original publication, HLA Hart's The Concept of Law is widely recognized as the most important work of legal philosophy published in the twentieth century, and remains the starting point for most students coming to the subject for the first time.In this third edition, Leslie Green provides a new introduction that sets the book in the context of subsequent developments in social and political philosophy, clarifying misunderstandings of Hart's project and highlighting central tensions and problems in the work.

First published in 1980, Natural Law and Natural Rights is widely heralded as a seminal contribution to the philosophy of law, and an authoritative restatement of natural law doctrine. It has offered generations of students and other readers a thorough grounding in the central issues of legal, moral, and political philosophy from Finnis's distinctive perspective. This new edition includes a substantial postscript by the author, in which he responds to thirty years of discussion, criticism and further work in the field to develop and refine the original theory.The book closely integrates the philosophy of law with ethics, social theory and political philosophy. The author develops a sustained and substantive argument; it is not a review of other people's arguments but makes frequent illustrative and critical reference to classical, modern, and contemporary writers in ethics, social and political theory, and jurisprudence.The preliminary First Part reviews a century of analytical jurisprudence to illustrate the dependence of every descriptive social science upon evaluations by the theorist. A fully critical basis for such evaluations is a theory of natural law. Standard contemporary objections to natural law theory are reviewed and shown to rest on serious misunderstandings.The Second Part develops in ten carefully structured chapters an account of: basic human goods and basic requirements of practical reasonableness, community and 'the common good'; justice; the logical structure of rights-talk; the bases of human rights, their specification and their limits; authority, and the formation of authoritative rules by non-authoritative persons and procedures; law, the Rule of Law, and the derivation of laws from the principles of practical reasonableness; the complex relation between legal and moral obligation; and the practical and theoretical problems created by unjust laws.A final Part develops a vigorous argument about the relation between 'natural law', 'natural theology' and 'revelation' - between moral concern and other ultimate questions.

This book deals with conscientious law-breaking - those instances in which individuals believe that they have sound moral reasons for breaking a particular law. This study is a comprehensive philosophical and legal analysis of the grey area in which the foundations of law and morality clash. It views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers.

This bold and powerfully argued book has two themes. The `minor' theme is that the content and direction of both constitutional and administrative law are integrally related. The `major' theme is that their nature and content can only be properly understood against the background political theory which a society actually espouses, or against such a background which a particular commentator believes a society should espouse.Public Law and Democracy in the United Kingdom and United States of America brings the fruits of writings in political science and political theory to bear on the issues of public law. A critical examination of the centralist democratic views of Dicey is followed by an extensive discussion of a variety of pluralist theories of democracy, tracing their development in the USA from the early twentieth century to their more sophisticated recent versions. A similar analysis is applied to a cross-section of English pluralists, and in all cases the discussion is followed by a criticism of the views expounded and an exploration of their implications for public law. Considerable space is devoted to the examination of Rawls' views and their implications for public law and to a discussion of Republicanism and radical participatory democracy arguments.

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.

This book traces the influence of philosophical ideas on the development of contract law from the post-Roman period through to the nineteenth century, focusing upon the synthesis of Roman law and the moral philosophy of Aristotle and Thomas Aquinas. Although primarily a study of the late scholastics this is a book about the history of ideas, and as such will be of great interest to legal historians and legal philosophers.

This is a philosophical but non-technical analysis of the very idea of a rule. Although focused somewhat on the role of rules in the legal system, it is also relevant to the place of rules in morality, religion, etiquette, games, language, and family governance. In both explaining the idea of a rule and making the case for taking rules seriously, the book is a departure both in scope and in perspective from anything that now exists.

Since 1980 there have been fundamental changes in the relationship between the state and industry. With the aid of economic theory, the atuhor critically examines the ways in which public law has been adapted to this task. The book provides a systematic overview of the theory and forms of social and economic regulation. In particular, it explores:(a) why governments regulate, for which, broadly speaking two theoretical frameworks exist - 'public interest' theories (regulation aims to improve social and economic welfare) and 'economic' theories (regulation aims to satisfy the demands of private interests);(b) the evolution of different forms of regulation in Britain, extending to the current policies of privatisation and deregulation;(c) the advantages and disadvantages of the different forms of regulation, evlauted in the ligh of the two theoretical frameworks and involving an analysis of how firms respond to the various kinds of incentives and controls;(d) how choices between the different forms of regulation are made by governments and the influence exerted by interest groups (including bureaucrats) and EC law.

This is a new edition of our well-established Property text in the renowned Clarendon Law Series. It is completely revised and updated, addressing all recent legislative changes in the law relating to trusts of land, formalities, registration of title and management of trust funds. It provides a clear and critical account of the basic principles of the law of property and unlike most texts, does not limit the discussion to real property (or land), but focuses on all the topics taught on UK courses. It sketches out the main patterns of the subject without giving undue prominence to the exceptions and historical inconsistencies. It cites few statutes and no cases, concentrating on illuminating the underlying themes of the subject.

On what basis does tort law hold us responsible to those who suffer as a result of our carelessness? Why, when we breach our contracts, should we make good the losses of those with whom we contracted? In what sense are our torts and our breaches of contract 'wrongs'? These two branches of private law have for centuries provided philosophers and jurists with grounds for puzzlement. This book provides an outline of, and intervention in, contemporary jurisprudential debates about the nature and foundation of liability in private law.After outlining the realm of the philosophy of private law, the book divides into two. Part I examines the various components of liability responsibility in private law, including the notions of basic responsibility, conduct, causation and wrongfulness. Part II considers arguments purporting to show that private law does and should embody a conception of either distributive or corrective justice or some combination of the two. Throughout the book a number of distinctions - between conceptual and normative argument, between jurisprudential 'theory' and private law 'practice', between legal obligation and moral obligation - are analyzed, the aim being to give students an informed grasp of both the limits and possibilities of the philosophy of private law.

Competition, or Antitrust, law is now a global phenomenon. It operates in more than 100 countries and the relationships among competition law systems are often complex and opaque. Competition law is also new to many countries, which creates uncertainty about how decisions will be made in these jurisdictions. This makes it critically important to understand both the similarities and differences among the systems and the relationships between them. A succinct introduction, this title breaks down the complicated and foreboding topic of competition law. Divided into four parts, this book covers the elements of competition laws, its decisions, targets, and globalization and the future of competition law. It also provides global context by looking at competition law in the US, Europe, and growing markets like Asia and Latin America. This title covers the most pressing issues of competition law in an informative and concise way.Drawing on his lifetime of global experience and research, David J. Gerber's Competition Law and Antitrust is an essential tool for anyone interested in competition or antitrust law.

Competition, or Antitrust, law is now a global phenomenon. It operates in more than 100 countries and the relationships among competition law systems are often complex and opaque. Competition law is also new to many countries, which creates uncertainty about how decisions will be made in these jurisdictions. This makes it critically important to understand both the similarities and differences among the systems and the relationships between them. A succinct introduction, this title breaks down the complicated and foreboding topic of competition law. Divided into four parts, this book covers the elements of competition laws, its decisions, targets, and globalization and the future of competition law. It also provides global context by looking at competition law in the US, Europe, and growing markets like Asia and Latin America. This title covers the most pressing issues of competition law in an informative and concise way.Drawing on his lifetime of global experience and research, David J. Gerber's Competition Law and Antitrust is an essential tool for anyone interested in competition or antitrust law.

What type of right is a property right? How are items of property classified for legal purposes? In this revised edition of Personal Property Law, Michael Bridge provides answers to these fundamental questions of property law. His critical analysis includes new material on insolvency, in particular the anti-deprivation principle and the pari passu rule, as well as comprehensive accounts of recent case law (OBG v Allan, Yearworth, and Datastream,) and statutory developments. Widely considered to be the best short introduction to English personal property law, Bridge constructs an authoritative and systematic summary of this complex field for readers approaching the subject for the first time. It focuses on the acquisition, loss, transfer, and protection of interests in personal property law, and specific topics include: ownership and possession; treatment of the separate contributions of the common law and equity to modern personal property law; discussion of modes of transfer; the means of protecting property interests; the resolution of disputes concerning title to personal property; the grant of security interests, and the issues arising out of the transformation and mixing of tangible personal property.

What type of right is a property right? How are items of property classified for legal purposes? In this revised edition of Personal Property Law, Michael Bridge provides answers to these fundamental questions of property law. His critical analysis includes new material on insolvency, in particular the anti-deprivation principle and the pari passu rule, as well as comprehensive accounts of recent case law (OBG v Allan, Yearworth, and Datastream,) and statutory developments. Widely considered to be the best short introduction to English personal property law, Bridge constructs an authoritative and systematic summary of this complex field for readers approaching the subject for the first time. It focuses on the acquisition, loss, transfer, and protection of interests in personal property law, and specific topics include: ownership and possession; treatment of the separate contributions of the common law and equity to modern personal property law; discussion of modes of transfer; the means of protecting property interests; the resolution of disputes concerning title to personal property; the grant of security interests, and the issues arising out of the transformation and mixing of tangible personal property.

In this path-breaking work, the authors seek to offer students a fresh way of looking at modern labour law. By taking as their starting point the idea that labour law, having once been governed by common law rules, is now overwhelmingly regulated by statute, the authors show that labour law can only be studied properly by understanding the legislation behind it.They then proceed to lead the student to an understanding of how and why the legislation came to be enacted. They therefore examine, in chronological order, the history and political context of every major piece of labour legislation from 1945 up to and including the momentous changes of the Thatcher years. Guiding the reader through four and a half decades of almost continuous legislative activity, the authors successfully demonstrate how the law was created and why it looks as it does today. No other textbook on this subject takes this approach.

This book sketches the history of Roman Private Law from the Twelve Tables to modern times, and sets out the elements of the system. It does not attempt to summarize the whole law, but explains and evaluates its most characteristic and influential features.This edition contains additional material provided by Ernest Metzger, including an introductory foreward, a revised bibliography, and a glossary of Latin terms.

This book examines the nature and role of the many conventions which, rather than laws, are instrumental in determining many important questions of Government behaviour in Britain and other Commonwealth countries

The principal concern of the law of torts is to repair accident losses. but its role has altered over the years as a result of such factors as the wider use of private and liability insurance. This completely revised and updated edition looks at the effect of these changes on the law, and an entirely new chapter compares tort with no-fault compensation in the light of accepted accident compensation policies.

The previous three editions of this book have established it as the most comprehensive account of precedent in English law for students, teachers and practitioners alike. The aim of the book is to present a basic guide to the current doctrine of precedent in England, set in the wider context of the jurisprudential problems which any treatment of the topic involves. Such problems include the nature of the ratio decidendi of a precedent and of its binding force, the significance of precedents alongside other sources of law, their role in legal reasoning, and the account which must be taken of them by any general theory of law. In examining these matters, the late Sir Rupert Cross expounded a fairly traditional practitioners' view, and this approach has been preserved in the fourth edition, although references are included to competing answers, taking into account developments in the literature since the third edition. Considerable re-writing has been undertaken to update case-law and take account of the possible implications for the doctrine of precedent of the impact of European community law, making it an indespensable work of reference for readers interested in the past history, present state and future developments of the English rules of precedent. Dr. J.W. Harris is a Fellow of Keble College, Oxford. The late Sir Rupert Cross was formerly Vinerian Professor of Law at the University of Oxford and a Fellow of Magdalen College, Oxford.

An Introduction to Constitutional Law discusses the general principles of the United Kingdom constitution from a critical, comparative perspective. It emphasizes the principal characteristics of this uncodified constitution, contrasting it with the documentary constitutions of the United States, France, and Germany. There are fewer checks on the power of government in this country than there are under those constitutions, where courts may review the constitutionality of legislation. This book also discusses the `federal' constitution of the European Union, as well as examining its impact on UK constitutional law. Its publication is particularly timely, in view of the programme of constitutional reform on which the Labour government has embarked. That makes it imperative to examine critically the principles of the constitution and explore whether anything may be learnt from the experience of other countries. The book offers a succinct and up to date account of British constitutional law and will be the ideal introduction for all students studying the subject whether as part of a law of politics degree.

Following in the tradition of the Clarendon Law Series, Criminal Justice is an extended essay on the core concepts, structures, and processes of the criminal justice system. The book prefers theoretical reflection above detailed description and favours provocative questions over simple answers. Its primary aim is to stimulate students of criminal justice to think critically about what they have learned. Criminal Justice challenges conventional understanding of crime, criminal justice and punishment by revealing their meanings to be open to multiple interpretations. It explores the historical contingency and cultural specificity of the institutions and practices of criminal justice. And it considers the many, often conflicting, roles fulfilled by the various players in the criminal process. In so doing, it reveals criminal justice to be more diverse and its purposes more contested than conventional accounts allow. The book concludes by examining radical changes in crime control and the pursuit of security and considering their import for criminal justice as we know it.

What makes an argument in a law case good or bad? Can legal decisions be justified by purely rational argument or are they ultimately determined by more subjective influences? These questions are central to the study of jurisprudence, and are thoroughly and critically examined in Legal Reasoning and Legal Theory, now with a new and up-to-date foreword. Its clarity of explanation and argument make this classic legal text readily accessible to lawyers, philosophers, and any general reader interested in legal processes, human reasoning, or practical logic.

The resulting trust has received little attention in recent years and this may be because, until relatively recently, the law relating to resulting trusts was thought to be settled and uncontroversial. Most of the current academic writing about resulting trusts is found in the established textbooks on equity and trusts, but these tend to provide little more than catalogues of the situations in which resulting trusts arise. There is, however, very little consensus on the principle by which the resulting trust operates, including the fundamental question whether it arises by opertaion of law or depends on the presumed intention to create a trust. This book examines the true nature of the resulting trust and the question whether the trusts brought into being to reverse unjust enrichment should not include resulting trusts. It then considers whether, when resulting trusts are properly understood, it does turn out that it is through the resulting trust that equity makes its principle contribution to reversing unjust enrichment. This book examines principally the case law of the UK, Canada and Australia, and it also makes reference to the views of academic commentators as found in the standard texts and law journals.

To offer a core concept of intellectual property, to consider various justifications for the recognition of intellectual property rights and to expound their operation in particular areas of activity is the purpose of this book.It is essential to examine both the concept of intellectual property and the reasons why a legal system might incorporate such a concept. We are increasingly told that the wealth of nations, consists in 'intangible assets'. These are the intangible products of human creativity, ingenuity and effort. It is frequently argued that these assets represent the future of the developed economies and that their adequate protection by the intellectual property regimes is essential to national, regional, and even global, prosperity. We are also told that the creators of such assets have a strong moral claim to them, and that developed legal systems should recognise this claim. This text examines the ethical issues and debates surrounding intellectual property law and focuses on three aspects of the major intellectual property regimes: subject matter; the allocation of the first ownership of rights; and the scope of protection. These three aspects of the major regimes provide readers with a strong sense of the shape and purpose of the most important intellectual property systems.

To offer a core concept of intellectual property, to consider various justifications for the recognition of intellectual property rights and to expound their operation in particular areas of activity is the purpose of this book. It is essential to examine both the concept of intellectual property and the reasons why a legal system might incorporate such a concept. We are increasingly told that the wealth of nations consists in 'intangible assets'. These are the intangible products of human creativity, ingenuity and effort. It is frequently argued that these assets represent the future of the developed economies and that their adequate protection by the intellectual property regimes is essential to national, regional, and even global, prosperity. We are also told that the creators of such assets have a strong moral claim to them, and that developed legal systems should recognise this claim. This text examines the ethical issues and debates surrounding intellectual property law and focuses on three aspects of the major intellectual property regimes: subject matter; the allocation of the first ownership of rights; and the scope of protection. These three aspects of the major regimes provide readers with a strong sense of the shape and purpose of the most important intellectual property systems.

This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, Contract Theory aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract. The book is in three parts. Part I introduces the idea of 'contract theory', and presents a framework for identifying, classifying, and evaluating contract theories. Part II describes and evaluates the most important general theories of contract; examples include promissory theories, reliance-based theories, and economic theories. In Part III, the theoretical issues raised by the various specific doctrines that make up the law of contract (e.g., offer and acceptance, consideration, mistake, remedies, etc.) are examined in separate chapters. The legal focus of the book is the common law of the United Kingdom, but the theoretical literature discussed is international in origin; the arguments discussed are thus relevant to understanding the law of other common law jurisdictions and, in many instances, to understanding the law of civil law jurisdictions as well.

This work explores the relationship between Bentham's utilitarian practical philosophy and his positivist jurisprudence. These theories appear to be in tension because his utilitarian commitment to the sovereignty of utility as a practical decision principle seems inconsistent with his positivist insistence on the sovereignty of the will of the lawmaker.Two themes emerge from the attempt in this work to reconcile these two core elements of Bentham's practical thought. First, Bentham's conception of law does not fit the conventional model of legal positivism. Bentham was not just a utilitarian and a positivist; he was a positivist by virtue of his commitment to a utilitarian understanding of the fundamental task of law. Moreover, his emphasis on the necessary publicity and the systemic character of law, led him to insist on an essential role for utilitarian reasons in the regular public functioning of law. Second, Bentham's radical critique of common law theory and practice convinced him of the necessity to reconcile the need for certainty of law with an equally great need for its flexibility. He eventually developed a constitutional framework for adjudication in the shadow of codified law that accorded to judges discretion to decide particular cases according to their best judgment of the balance of utilities, guaranteeing the accountability and appropriate motivation of judicial decision-making through institutional incentives.The original text of this work, first published in 1986, remains largely unchanged, but an afterword reconsiders and revises some themes in response to criticism.

This is an open access title available under the terms of a CC BY-NC-ND 4.0 International license. It is offered as a free PDF download from OUP and selected open access locations.How relevant is the concept of war today? This book examines how notions about war continue to influence how we conceive rights and obligations in national and international law. It also considers the role international law plays in limiting what is forbidden and legitimated in times of war or armed conflict. The book highlights how, even though war has been outlawed and should be finished as an institution, states nevertheless continue to claim that they can wage necessary wars of self-defence, engage in lawful killings in war, imprison law-of-war detainees, and attack objects which are said to be part of a war-sustaining economy. The book includes an overall account of the contemporary laws of war and delves into whether states should be able to continue to claim so-called 'belligerent rights' over their enemies and those accused of breaching expectations of neutrality. A central claim in the book is as follows: while there is general agreement that war has been abolished as a legal institution for settling disputes, the time has come to admit that the belligerent rights that once accompanied states at war are no longer available. The conclusion is that claiming to be in a war or an armed conflict does not grant anyone a licence to kill people, destroy things, and acquire other people's property or territory.

This is an open access title available under the terms of a CC BY-NC-ND 4.0 International license. It is offered as a free PDF download from OUP and selected open access locations.How relevant is the concept of war today? This book examines how notions about war continue to influence how we conceive rights and obligations in national and international law. It also considers the role international law plays in limiting what is forbidden and legitimated in times of war or armed conflict. The book highlights how, even though war has been outlawed and should be finished as an institution, states nevertheless continue to claim that they can wage necessary wars of self-defence, engage in lawful killings in war, imprison law-of-war detainees, and attack objects which are said to be part of a war-sustaining economy. The book includes an overall account of the contemporary laws of war and delves into whether states should be able to continue to claim so-called 'belligerent rights' over their enemies and those accused of breaching expectations of neutrality. A central claim in the book is as follows: while there is general agreement that war has been abolished as a legal institution for settling disputes, the time has come to admit that the belligerent rights that once accompanied states at war are no longer available. The conclusion is that claiming to be in a war or an armed conflict does not grant anyone a licence to kill people, destroy things, and acquire other people's property or territory.