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Chapter

Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes

This chapter looks at the laws that aim specifically to protect plants, animals, the natural habitats—and, increasingly, the ecosystems—of which they are a part. This is an important part of environmental law, not least because of the appalling rate of decline in, and loss of, the natural environment, but also due to the obvious public interest in conserving biodiversity. Using the law to conserve nature, however, involves finding solutions to some complex policy issues. Finding space for species and habitats to be conserved often clashes with other legitimate social interests, such as economic development and respect for private property. These tensions—which mean that nature conservation law can be a controversial policy area—are a central theme of the chapter.

Chapter

Justine Pila and Paul L.C. Torremans

This chapter offers a full and critical account of the arguments for and against the existence of IP systems in general, and of European IP systems in particular. It begins by considering two general theories in support of the recognition of IP rights as natural rights: the first casting IP as supporting the personal development and autonomy of individual creators (the argument from personhood), and the second casting IP as securing for creators such rights as they deserve by virtue of their acts of intellectual creation (the argument from desert). From natural law accounts of the existence of IP the chapter goes on to examine three other theories grounded in considerations of justice, utility, and pluralism respectively. According to the first, IP is defensible as a means of preventing people either from being enriched unjustly or from harming others by unfairly ‘reaping where they have not sown’. According to the second, IP rights are privileges conferred by the state on specific individuals in the pursuit of certain instrumentalist ends, such as encouraging socially desirable behaviour on the part of their beneficiaries or discouraging socially undesirable behaviour on the part of those whose freedoms they restrict. And according to the third, IP is a regulatory mechanism by which different understandings and traditions of protecting creative and informational subject matter are reconciled in support of legal and social pluralism. The chapter concludes with a discussion of the implications of the theoretical accounts for the duration of copyright and related rights protection and the patentability of biotechnology.

Chapter

J. E. Penner and E. Melissaris

This chapter explores classical natural law theory. The discussions cover the central concerns of naturalist theories; classical Greco-Roman natural law; the impact of Christian theologian philosophers, in particular Augustine and Aquinas; the natural law revival; Fuller’s procedural natural law; and John Finnis and the theory of natural rights.

Chapter

This chapter examines the important theory of legal positivism that has long dominated jurisprudence. It explains the core ideas of the theory, and then considers the leading proponents of classical legal positivism, especially the leading nineteenth century philosophers, Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but he insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s.

Book

With a clear, engaging, and informal style, Understanding Jurisprudence is the perfect guide for students new to legal theory looking for a handy and stimulating starting point to this sometimes daunting subject. Key theories and theorists are introduced in a compact and practicable format, offering an accessible account of the central ideas without oversimplification. Further reading suggestions are included throughout, helping students to structure their research and navigate the jurisprudence’s extensive literature. Critical questions are also included in each chapter, to encourage students to think analytically about the law and legal theory, and the numerous debates that it generates. The author is an experienced teacher of jurisprudence and excels at providing a concise, student-friendly introduction to the subject, without avoiding the subtleties of this absorbing discipline. New to this, the book’s sixth edition, are: the most recent scholarship in several areas, including expanded discussions of theories of justice, globalization, and environmental protection, as well as a new section on judicial review and democracy. There are also updated suggested further reading lists and questions at the end of each chapter.

Book

With a clear, engaging, and informal style, Understanding Jurisprudence is the perfect guide for students new to legal theory looking for a handy and stimulating starting point to this sometimes daunting subject. Key theories and theorists are introduced in a compact and practicable format, offering an accessible account of the central ideas without oversimplification. Further reading suggestions are included throughout, helping students to structure their research and navigate the jurisprudence’s extensive literature. Critical questions are also included in each chapter, to encourage students to think analytically about the law and legal theory, and the numerous debates that it generates. The author is an experienced teacher of jurisprudence and excels at providing a concise, student-friendly introduction to the subject, without avoiding the subtleties of this absorbing discipline. New to this, the book’s fifth edition, are: the most recent scholarship in several areas, including the social and political developments that have influenced the law and legal theory; expanded chapters on natural law, legal positivism, rights, and theories of justice; revised discussions of virtue ethics, human and animal rights, the economic analysis of law, and feminist theories; and updated suggested further reading lists and questions at the end of each chapter.

Chapter

This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s. A number of key concepts analysed by both of these theorists are examined and compared, including their definitions of law, commands, sovereignty, and sanctions.

Chapter

This chapter discusses the relationship between the ancient classical theory of natural law and its application to contemporary moral questions. It considers the role of natural law in political philosophy, the decline of the theory of natural law, and its revival in the twentieth century. The principal focus is on John Finnis’s natural law theory based largely on the works of St Thomas Aquinas. The chapter posits a distinction between ‘hard’ and ‘soft’ natural law, examines the notion of moral realism, and examines the tension between law and morality; and the subject of the moral dilemmas facing judges in unjust societies.

Chapter

Sir William Wade and Christopher Forsyth

This chapter first discusses how the courts have devised a code of fair administrative procedure based on doctrines which are an essential part of any system of administrative justice. It then explains the concept of administrative justice and natural justice; natural justice in the common law; the European Convention and natural justice in administrative proceedings; and the curative effect of access to a court of ‘full jurisdiction’.

Chapter

This chapter explains the overlapping ideas of natural justice, procedural fairness, and due process, and discusses the importance of comity between judges and administrative agencies. The elements of process are outlined: notice and disclosure, oral hearings, waiver, reconsideration, and appeals. Proportionality is presented as a general principle of the procedural duties of public authorities, and the chapter explains the three process values: procedural requirements can improve decisions, treat people with respect, and subject the administration to the rule of law. The chapter explains the irony of process: the law must sometimes require procedures that impose disproportionate burdens on administrative authorities, in order to protect due process. The chapter concludes with an explanation of discretion in process and of the potential dangers involved in administrative processes.

Chapter

This chapter explains the overlapping ideas of natural justice, procedural fairness, and due process, and discusses the importance of comity between judges and administrative agencies. The elements of process are outlined: notice and disclosure, oral hearings, waiver, reconsideration, and appeals. Proportionality is presented as a general principle of the procedural duties of public authorities, and the chapter explains the three process values: procedural requirements can improve decisions, treat people with respect, and subject the administration to the rule of law. The chapter explains the irony of process: the law must sometimes require procedures that impose disproportionate burdens on administrative authorities, in order to protect due process. The chapter concludes with an explanation of discretion in process, and of the potential dangers involved in administrative processes.

Chapter

H. L. A. Hart

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter examines the relations between law and morals. It analyses what lies between Natural Law and Legal Positivism. It considers, in the form of five truisms, the salient characteristics of human nature upon which the minimum content of Natural Law rests. These truisms are: human vulnerability, approximate equality, limited altruism, limited resources, and limited understanding and strength of will. The chapter concludes by examining six forms of the claim that there is some further way in which law must conform to morals beyond that which has been exhibited as the minimum content of Natural Law.

Chapter

This chapter presents a brief history of international law. It proceeds chronologically, beginning with an overview of the ancient world, followed by a more detailed discussion of the great era of natural law in the European Middle Ages. The classical period (1600–1815) witnessed the emergence of a dualistic view of international law, with the law of nature and the law of nations co-existing (more or less amicably). In the nineteenth century—the least-known part of international law—doctrinaire positivism was the prevailing viewpoint, though not the exclusive one. For the inter-war years, developments both inside and outside the League of Nations are considered. The chapter concludes with some historically oriented comments on international law during the post-1945 period.

Chapter

This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.

Chapter

This chapter discusses a number of issues, including the following: classical natural law theory; natural law in political philosophy, including the approaches of Hobbes, Locke, and Rousseau; the decline of natural law theory and the influence of Hume; the revival of natural law theory especially in the period after the Second World War; John Finnis’s classical natural law theory; hard and soft natural law; moral realism; law and morality and the Hart–Fuller, and Hart–Devlin debates. Controversial issues are addressed in the consideration of questions relating to abortion and euthanasia, and the chapter ends with a case study on judicial morality.

Chapter

This chapter focuses on nature conservation law. This area of law includes a diverse range of legal regimes which are concerned with protecting the natural environment and includes laws that protect individual species and laws that protection particular areas. Nature conversation regimes exist at the national, EU and international level. The reasons for protection can vary as can by the types of law included in these regimes.

Chapter

This chapter provides an introduction to legal reasoning. It first outlines the skills to analyse how judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so the chapter introduces some of the theory behind judicial reasoning before moving on to show how judges reason in practice, how one case can give rise to multiple judgments, and the importance of legal ethics.

Chapter

Articles 56–7 TFEU lay down the principle of freedom to provide services on a temporary basis by a person established in one Member State to a recipient established in another. This chapter first considers who is entitled to benefit from the services provisions and the rights they enjoy in respect of: (1) initial access to the market; (2) the exercise of the freedom; and (3) the enjoyment of social advantages.

Chapter

An easement is a form of third-party right that allows one to enjoy the benefits of land ownership. Some examples of such rights are rights of way, rights of light, the right to use a washing line on a neighbour’s land, the right to use a neighbour’s lavatory, and the right to park a car on another person’s land. The easement must exist for the benefit of land and cannot exist in gross. This chapter, which explores the nature of easements and considers their related concepts such as natural rights, public rights, restrictive covenants, and licences, also discusses legal and equitable easements, the creation of easements, and proposals for reform of the law on easements.

Chapter

Articles 56–7 TFEU lay down the principle of freedom to provide services on a temporary basis by a person established in one Member State to a recipient established in another. This chapter first considers who is entitled to benefit from the services provisions and the rights they enjoy in respect of: (1) initial access to the market; (2) the exercise of the freedom; and (3) the enjoyment of social advantages.