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Beyond Dogmatics: Law and Society in the Roman World

John W. Cairns and Paul J. du Plessis

This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound ... More

This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound impact upon the study of law and history and has created sharply divided opinions on the extent to which law may be said to be a product of the society that created it. This work is an attempt to provide a balanced assessment of the various points of view. The chapters within the book have been specifically arranged to represent the debate. The chapters address this debate by focusing on studies of law and empire, codes and codification, death and economics, commerce and procedure. This book does not purport to provide a complete survey of Roman private law in light of Roman society. Its primary aim is to address specific areas of the law with a view to contributing to the larger debate.Less

The Birth of Nomos

Thanos Zartaloudis

The Birth of Nomos delves into the history of the fundamental ancient Greek word nomos (and its family and other related words) to extensively examine the varied co-existent uses of the terms from ... More

The Birth of Nomos delves into the history of the fundamental ancient Greek word nomos (and its family and other related words) to extensively examine the varied co-existent uses of the terms from the archaic to the early classical period, before and beyond its later meaning of 'law' or 'law-making'. The Birth of Nomos draws on the literary evidence in the works of the poets, philosophers and tragedians including Homer, Hesiod, Alcman, Pindar, Archilochos, Theognis, Heraclitus, Plato, Aeschylus, Sophocles and Euripides. In doing so it critically reflects on how nomos and its complex genealogy have been used by contemporary philosophers, including Agamben, Foucault, Heidegger, Schmitt, Nancy, Deleuze and Axelos.Less

Breach of the Peace

Pamela R. Ferguson

What do the following behaviours have in common: shouting and swearing, painting graffiti, killing a fox by kicking it, glue-sniffing, cross-dressing in public, dangerous driving, discharging a ... More

What do the following behaviours have in common: shouting and swearing, painting graffiti, killing a fox by kicking it, glue-sniffing, cross-dressing in public, dangerous driving, discharging a fire-arm, engaging in a roof-top prison protest, throwing a lit firework in a bus, attempting to commit suicide, making threatening gestures, and kerb crawling? Incredibly, each of these behaviours has been successfully prosecuted in Scotland as the crime of ‘breach of the peace’. This book describes and critiques this commonly prosecuted crime. The author traces the development of the crime from the mid-19th century to the present day, and also considers related statutory offences. The latter include those offences created by the Criminal Justice and Licensing (Scotland) Act 2010, and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. It is argued that breach of the peace remains an overly broad and ill-defined crime – despite the appeal court’s attempts at narrowing its definition.Less

Buying your Self on the Internet: Wrap Contracts and Personal Genomics

Andelka M. Phillips

The personal genomics industry (aka direct-to-consumer genetic testing) has created a market for genetic tests as consumer services. This has taken genetic testing out of the clinic and into people’s ... More

The personal genomics industry (aka direct-to-consumer genetic testing) has created a market for genetic tests as consumer services. This has taken genetic testing out of the clinic and into people’s homes. The industry is diverse offering tests for various health conditions and ancestry, as well as more dubious tests, such as ‘peace of mind’ paternity, ‘infidelity’ (or surreptitious testing), child talent, and even matchmaking. It is growing rapidly, but at present many tests are not standardized and the industry has not been subject to specific regulation. As with many other Internet based industries, companies tend to rely on their electronic wrap contracts to govern their relationships with their consumers. This book provides an introduction to the world of personal genomics and examines the rise of the industry and its use of ‘wrap’ contracts, drawing upon the author’s review of the contracts of 71 companies that provide tests for health purposes. It explores the different types of tests available and the issues that this industry raises for law and for society.Less

Childhood and Crime

Claire McDiarmid

This book is a treatise on youth justice which examines the treatment, by the criminal law and the criminal justice system, of children who commit serious crimes. It draws on legal, philosophical and ... More

This book is a treatise on youth justice which examines the treatment, by the criminal law and the criminal justice system, of children who commit serious crimes. It draws on legal, philosophical and Childhood Studies literature to look at the interaction between law and childhood and considers a number of cases, including the murder of James Bulger in 1993 through these lenses, noting the difficulties for legal systems, of accommodating individuals who are, simultaneously, both “child” and “criminal”. The law’s impulse is to protect children and to call to account and punish offenders – aims which sometimes conflict. Other areas of law encounter similar difficulties in the tension between the child’s need for protection and for the nurture of his/her growing autonomy. Drawing on its discussion of this child-criminal paradox, the book examines two examples of the law’s response to children who offend: the age of criminal responsibility and the doli incapax presumption. It proceeds to argue that, in every case, a thorough investigation of the child’s criminal capacity, drawing on developmental psychology, is necessary to provide a fair and rational basis for decisions on responsibility and disposal in respect of such children. It presents a model for achieving this. It also examines the existing response of the Scottish legal system to such children, both in the courts, and through the children’s hearings system. Overall, the argument is for a fair and compassionate approach which takes account of the public interest and the need for public confidence in the criminal justice system.Less

Cicero's Law: Rethinking Roman Law of the Late Republic

Paul J. du Plessis (ed.)

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” ... More

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” that is, a kind of exile), no matter how many charges were proven? The answer lies not in a failure to distinguish between legal charges leveled at the defendant and defamation of his character, but rather in a rhetorical strategy that made sense in light of what was legally necessary to obtain a conviction. The greater the number of charges, the more likely the jurors would be persuaded that the defendant had in some way violated the statute according to which the trial was being conducted. It is true that prosecutors typically argued that the defendant’s prior conduct made it plausible that he had committed the crimes with which he was charged, but in a way that, as much as possible, made his guilt on these particular charges seem likely, and defense patroni attempted to undermine the charges and the character defamation. This answer to the apparent contradiction between multiple charges and unitary punishment favors a moderate formalism over legal realism as the way to interpret Roman criminal trials.Less

Commercial Arbitration

Hong-Lin Yu

This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act ... More

This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act 2010 (which provides a modern statutory framework for domestic and international arbitration in Scotland) and the most important current issues that are arising in the field of international commercial arbitration. It includes a number of highly relevant legal case studies that compare Scottish and international practice. These provide a practical insight into the various aspects of arbitration. It also includes a number of chapters on international practice. These cover UNCITRAL Model Law, UNCITRAL Arbitration Rules, institutional arbitration rules, and International Bar Association arbitration guidelines.Less

The Community of the College of Justice: Edinburgh and the Court of Session, 1687 –1808

John Finlay

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the ... More

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the College of Justice, the judges and the advocates, whose arguments and decisions guided the development of Scots law, as well as the macers, clerks, keepers and agents whose roles were vital in allowing the court to deal with its business. The Court of Session had a central place in Edinburgh and its members were drawn from across Scotland. It was the professional milieu of men of the calibre of Lord Kames, Sir David Dalrymple of Hailes and Sir Walter Scott. Despite a turbulent history with a town council jealous of their privileges, College members made a profound contribution to the physical and cultural development of Edinburgh as a city. This is their story.Less

The Consequences of Possession

Eric Descheemaeker (ed.)

The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. ... More

The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. Bringing together contributions of scholars from the civilian tradition (France, Germany, Italy), the common-law world (England) and mixed legal systems (Quebec, Scotland, South Africa), The Consequences of Possession examines from a historical and comparative perspective the consequences which the law derives from the recognition of a possessory relationship between a person and a thing. Excluding rights which require more than possession to be triggered (such as prescriptive acquisition or transfer of title by delivery), it focuses on the protection of possession across the divide between the two great western legal traditions.Less

Constituent Power: Law, Popular Rule and Politics

Matilda Arvidsson, Leila Brännström, and Panu Minkkinen (eds)

Recent social and political developments, including the presidential elections in the United States, antidemocratic state policies in Hungary and Poland, and the political climate in the rest of ... More

Recent social and political developments, including the presidential elections in the United States, antidemocratic state policies in Hungary and Poland, and the political climate in the rest of Europe have brought questions relating to the position and composition of ‘the people’ in constitutional democracies to the forefront. This book confronts these questions head on as leading scholars across the fields of law, legal theory, political theory and history explore the contemporary problems facing constitutional democracies. With a strong focus on constitutional law, this book examines the legal as well as the political power of ‘the people’ in constitutional democracies. Bringing together an international range of contributors from the USA, Latin America, the UK and continental Europe, it explores the complex relationship between constitutional democracy and ‘the people’ from the angles of constitutional law, legal theory, political theory, and history. Contributors explore this relationship through the lens of radical democracy, engaging with the work of key figures such as Hannah Arendt, Carl Schmitt, Claude Lefort, and Jacques Rancière.Less

The Courts, the Church and the Constitution: Aspects of the Disruption of 1843

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text ... More

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text discusses and analyses the legal and constitutional issues arising from the Disruption of the Church of Scotland in 1843 when the majority of leading ministers left the Church of Scotland to set up the Free Church. It takes a look at the series of cases in the Court of Session and the House of Lords between 1837 and 1843 which led to the Disruption, showing how they gave rise to the most important constitutional crisis and challenge to the Courts' authority that had occurred since the 1707 Union.Less

The Creation of the Ius Commune: From Casus to Regula

John W. Cairns and Paul J. du Plessis

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of ... More

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of Western Europe. It discusses in detail how medieval scholars reacted to the casuistic discussions in the inherited Roman texts, particularly the Digest of Justinian. It shows how they developed medieval Roman law into a system of rules that formed a universal common law for Western Europe. Because there has been little research published in English beyond grand narratives on the history of law in Europe, this book fills a gap in the literature. With a focus on how the medieval Roman lawyers systematised the Roman sources through detailed discussions of specific areas of law, it considers: the sources of medieval law and how to access them; the development from cases to rules; medieval lawyers' strategies for citing each other and their significance; and the growth of a conceptual approach to the study of law.Less

Diversity and Integration in Private International Law

Verónica Ruiz Abou-Nigm and María Blanca Noodt Taquela (eds)

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It ... More

This book opens a cross-regional dialogue and shifts the Eurocentric discussion on diversity and integration to a more inclusive engagement with South America in private international law issues. It promotes a contemporary vision of private international law as a discipline enabling legal interconnectivity, with the potential to transcend its disciplinary boundaries to further promote the reality of cross-border integration, with its focus on the ever-increasing cross-border mobility of individuals. Private international law embraces legal diversity and pluralism. Different legal traditions continue to meet, interact and integrate in different forms, at the national, regional and international levels. Different systems of substantive law couple with divergent systems of private international law (designed to accommodate the former in cross-border situations). This complex legal landscape impacts individuals and families in cross-border scenarios, and international commerce broadly conceived. Private international law methodologies and techniques offer means for the coordination of this constellation of legal orders and value systems in cross-border situations. Bringing together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions in Europe and South America, this edited collection focuses on the connective capabilities of private international law in bridging and balancing legal diversity as a corollary for the development of integration. The book provides in-depth analysis of the role of private international law in dealing with legal diversity across a diverse range of topics and jurisdictions.Less

Enlightenment, Legal Education, and Critique: Selected Essays on the History of Scots Law, Volume 2

John W. Cairns

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the ... More

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the development of Scots law through the major legal thinkers of the Enlightenment, essays on Roman law and miscellaneous essays on the literary and philosophical traditions within law. Both volumes combine together and reprint a selection of some of the many articles and essays published by Cairns over a distinguished career in legal history. It is a mark of Cairn's international eminence that much of his prolific output has been published outside of the UK, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate.Less

Essays in Criminal Law in Honour of Sir Gerald Gordon

James Chalmers and Fiona Leverick

This book honours the work of Sir Gerald Gordon CBE QC LLD (1929– ). In modern times few, if any, individuals can have been as important to a single country's criminal law as Sir Gerald has been to ... More

This book honours the work of Sir Gerald Gordon CBE QC LLD (1929– ). In modern times few, if any, individuals can have been as important to a single country's criminal law as Sir Gerald has been to the criminal law of Scotland. His monumental work The Criminal Law of Scotland (1967) is the foundation of modern Scottish criminal law and is recognised internationally as a major contribution to academic work on the subject. Elsewhere, he has made significant contributions as an academic, judge and as a member of the Scottish Criminal Cases Review Commission. Reflecting the academic rigour and practical application of Sir Gerald's work, this volume includes chapters on criminal law theory, substantive law and evidence and procedure by practitioners and academics within and outside of Scotland, including contributions from England, Ireland, and the USA.Less

The European Charter of Local Self-Government: A Treaty for Local Democracy

Chris Himsworth

The first critical study of the 1985 international treaty that guarantees the status of local self-government (local autonomy). Chris Himsworth analyses the text of the 1985 European Charter of Local ... More

The first critical study of the 1985 international treaty that guarantees the status of local self-government (local autonomy). Chris Himsworth analyses the text of the 1985 European Charter of Local Self-Government and its Additional Protocol; traces the Charter’s historical emergence; and explains how it has been applied and interpreted, especially in a process of monitoring/treaty enforcement by the Congress of Local and Regional Authorities but also in domestic courts, throughout Europe. Locating the Charter’s own history within the broader recent history of the Council of Europe and the European Union, the book closes with an assessment of the Charter’s future prospects.Less

European Contract Law: Scots and South African Perspectives

Hector MacQueen and Reinhard Zimmermann

This book sets out initially to test the claim that, as combinations of civil and common law influences, the mixed systems of contract law in Scotland and South Africa have anticipated the content of ... More

This book sets out initially to test the claim that, as combinations of civil and common law influences, the mixed systems of contract law in Scotland and South Africa have anticipated the content of the Principles of European Contract Law (PECL), concluded and published in 2003 by the unofficial Commission on European Contract Law. The studies go much further, however. Current official moves towards a European contract law within the European Union lend the critiques of PECL offered in this book an especial urgency and significance. A European contract law is nearer to reality than ever before, and mere policy critiques of that possibility are no longer enough. Technical and substantive assessments of PECL are also essential. This book provides just such assessments from the perspective of Scots and South African contract lawyers, and is offered to the European debate without prejudice as to the deeper policy questions. At the same time it may help to inform Scots and South African lawyers about the substance of international developments in the field, and suggest ways in which their still-vigorous and vital national laws may continue to be developed to remain in step with the needs of the present day.Less

The European Court of Human Rights: Implementing Strasbourg's Judgments on Domestic Policy

Dia Anagnostou

One of the most remarkable characteristics of the European Convention of Human Rights and its highly acclaimed judicial tribunal in Strasbourg is the extensive obligations of the contracting states ... More

One of the most remarkable characteristics of the European Convention of Human Rights and its highly acclaimed judicial tribunal in Strasbourg is the extensive obligations of the contracting states to give effect to its judgments. This book explores the processes of domestic execution of the European Court of Human Rights’ judgments and seeks to understand the variable patterns of implementation within and across states. It provides an interdisciplinary perspective into the multifaceted ways in which the Strasbourg Court's judgments influence and at times transform human rights standards, laws and policies at the national level. Eight country-based case studies focus on various areas of law and policy to examine how national authorities implement the ECtHR's judgments, as well as whether state compliance with these influences legal and policy change in the direction of expanding rights. A number of the contributions also explore how marginalised individuals, civil society and minority actors strategically take recourse in Strasbourg to challenge state laws, policies and practices. These bottom-up dynamics influencing the domestic implementation of human rights are virtually unexplored in the scholarly literature. What is the impact of the ECtHR's case law on the legal norms, institutional structures and policies of national states that participate in it± Do national authorities implement the adverse ECtHR's rulings, and what factors facilitate, or conversely restrict implementation± Does social, legal and political mobilisation affect the domestic implementation of the ECtHR's judgments, as well as their potential to exert broader influence over policy and democratic reforms±Less

Exploring the Law of Succession: Studies National, Historical and Comparative

Kenneth Reid and Marius de Waal

By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This book contributes to its rehabilitation by examining key issues in succession law from ... More

By comparison with other areas of private law, the law of succession has been neglected by modern scholars. This book contributes to its rehabilitation by examining key issues in succession law from a variety of perspectives: national, historical and comparative. In particular it seeks to extend the techniques of legal comparison into an area of law where hitherto they have been little used. The jurisdictions most prominently featured are the mixed jurisdictions of Scotland and South Africa, but there are frequent comparative references, and special attention is given to the Netherlands as the country that has most recently re-written its succession law. The authors of the individual chapters are drawn from Scotland, South Africa, Germany, Italy and the Netherlands. Among the topics covered are freedom of testation, testamentary conditions and public policy, forfeiture clauses and events, revocation of wills by changed circumstances, revocation of mutual wills, fideicommissary substitutions and succession agreements.Less

A Foucauldian Interpretation of Modern Law: From Sovereignty to Normalisation and Beyond

Jacopo Martire

Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is ... More

Although Foucault is certainly one of most influential scholars of our age, law is for Foucauldian scholarship akin to an “undigestable meal”. This is due to a seemingly unresolvable dilemma: how is it possible to analyse law through Foucauldian lenses if Foucault himself claimed (albeit cursorily) that law, in modernity, has been colonised by other disciplines and ousted from the locus of power? Building on Foucault’s ideas about power, freedom, and subjectivity, the present book tackles this problem through a critical genealogy of the philosophico-political ideas at the basis of modern law, delineating the historical emergence of the implicit regulative conditions of our legal present. The book proposes that modern law and modern forms of power – which Foucault termed biopolitical because they sort, train, and tame persons and populations with the aim of normalizing society – developed symbiotically and that, to the extent that modern law establishes the existence of a universal legal subject, law’s functioning is made possible by the homogenization of society through normalising practices. We are however fast moving towards the absolute limit of this normalizing complex. As normalising strategies are progressively unable to homogenise a social body which is increasingly composed by “fluid” subjects, modern law faces two interconnected challenges – a normative one (how can normalizing laws properly reflect the wills of a mass of differentiated fluid individuals?) and a functional one (how can normalizing laws effectively regulate such new protean social body?) – which put into question the very foundations of our legal discourse.Less