bluuebunny/crossref_metadata_2025_split huggingface dataset:
On Morality as a Necessary or Sufficient Condition for Legality
Authors: Kramer Matthew H. 
Published: January 2009

Abstract
This chapter rebuts arguments by Exclusive Legal Positivists who have sought to show that the entry of moral principles into the law would be inconsistent with some of law's prominent features: its conventionality, its regularity, and its capacity to limit official discretion. After doing battle with Exclusive Legal Positivists (Andrei Marmor, Eleni Mitrophanous, and Joseph Raz), the chapter expounds further the merits of Inclusive Legal Positivism and the modest version of Incorporationism.
Of Final Things: Morality as one of the Ultimate Determinants of Legal Validity
Authors: Kramer Matthew H. 
Published: January 2009

Abstract
This chapter expounds the idea of a Rule of Recognition (that is, a basic set of law-ascertaining criteria) in every legal system. It then parries Kenneth Himma's criticisms of Inclusive Legal Positivism and Incorporationism. In so doing, the chapter expands on Chapter 2's explanation of how moral principles can enter into the law of a legal system whose officials are mistaken in many of their concrete moral judgments.
On the Moral Status of the Rule of Law
Authors: Kramer Matthew H. 
Published: January 2009

Abstract
This chapter begins with a discussion of the distinction between reasons-for-action and actual motivations, and it then moves on to engage with two prominent critics of legal positivism: Nigel Simmonds and Philip Soper. The chapter reaffirms legal positivism's insistence on the separability of law and morality, in the face of Simmonds's and Soper's challenges.
Moral Rights and the Limits of the ‘Ought’-Implies-‘Can’ Principle: Why Impeccable Precautions are No Excuse
Authors: Kramer Matthew H. 
Published: January 2009

Abstract
H. L. A. Hart and many other philosophers have maintained that fault-independent liability is sometimes imposed by legal norms but never by moral principles. This chapter assails such a view, by arguing that fault-independent liability is more common in morality than in law. In the course of arguing for such a conclusion, it expounds the nature of moral rights with particular attention to the remedial obligations that are triggered by violations of those rights.
The Interpretation of Acts and Rules in Public International Law
Authors: Orakhelashvili Alexander 
Published: January 2009

AbstractThere are frequent claims that the international legal regulation in one or another field of international law is uncertain, vague, ambiguous, or indeterminate, which does not support the stability, transparency, or predictability of international legal relations. This monograph examines the framework of interpretation in international law based on the premise of the effectiveness and determinacy of international legal regulation, which is a necessary prerequisite for international law to be viewed as law. This study examines this problem for the first time since these questions were addressed, and taken as the basic premises of the international legal analysis in the works of J. L. Brierly and Sir Hersch Lauterpacht. Addressing the different aspects of the effectiveness of legal regulation, this monograph examines the structural limits on and threshold of legal regulation, and the relationship between the established legal regulation and non-law. Once the limits of legal regulation are ascertained, the analysis proceeds to examine the legal framework of interpretation that serves the maintenance and preservation of the object and intendment of the existing legal regulation. The final indispensable stage of analysis is the interpretation of those treaty provisions that embody the indeterminate conditions of non-law. Given that the generalist element of international legal doctrine has been virtually silent on the problem and implications of the effectiveness and determinacy of international legal regulation, this study examines the material accumulated in doctrine and practice for the past several decades, including the relevant jurisprudence of all major international tribunals.
Interest as Non-Law
Authors: Orakhelashvili Alexander 
Published: January 2009

AbstractThis chapter examines doctrinal and practical aspects of relationship between law and interest. There are two principal dimensions: how interest may prompt new legal regulation, and how interest can affect the existing legal regulation. The systemic relevance of interest under the law of State responsibility is also covered. Major emphasis is made on such areas of law as nationality, territory, and law of the sea. Jurisprudence of all major international tribunals is included.
Treaty Interpretation: Rules and Methods
Authors: Orakhelashvili Alexander 
Published: January 2009

AbstractThis chapter begins by examining the constitutional relevance of the Vienna Convention rules of interpretation, and the debate on the need for rules of interpretation. After covering historical and conceptual aspects of the problem, it examines in detail the principles of interpretation in terms of plain meaning, context, object and purpose, subsequent practice, ‘relevant rules’ of international law, and preparatory work. The hierarchy of interpretation methods is arranged in terms of which method better reflects the original consent and agreement given by States to treaties. In terms of recent debate, the notion of ‘systemic integration’ is also addressed. The practice examined covers ICJ, WTO dispute settlement bodies, arbitral tribunals (general and investment), WTO dispute settlement bodies, and European Court of Human Rights.
Treaty Interpretation: Effectiveness and Presumptions
Authors: Orakhelashvili Alexander 
Published: January 2009

AbstractThis chapter examines the origins and parameters of the principle of effectiveness in the field of treaty interpretation, and applies it to a number of fields. This is relevant for interpreting treaties in general, for avoiding redundancy of treaty clauses, for interpreting exceptions, and construing the powers of international organisations and tribunals on the basis of the doctrines of implied and inherent powers. The chapter demonstrates that the principle of effectiveness is received in international jurisprudence without any substantial objection, and it negates the principle of restrictive interpretation, which is consistently rejected in jurisprudence.
Interpretation of Customary Rules
Authors: Orakhelashvili Alexander 
Published: January 2009

AbstractThis chapter covers the interpretation of customary rules arguably for the first time in English. The nature of customary rules, in terms of whether they are substantive or reference rules, will explain how they should be interpreted. Although customary rules are not written, they still have their object and purpose and can be interpreted effectively. The whole process responds, as international jurisprudence demonstrated, to the thesis of effective interpretation of existing legal regulation as articulated in the writings of Sir Hersch Lauterpacht. The principal material used in this chapter relate to the law of the sea and investment arbitration.
The Essence of and Response to the Indeterminacy of Treaty Provisions
Authors: Orakhelashvili Alexander 
Published: January 2009

AbstractThis chapter focuses on a number of contexts where the policy-abundant indeterminate notions are included in treaties with the effect of impacting the rights and duties of States. These contexts relate to indeterminate margin of appreciation policy notions under the European Convention on Human Rights and the WTO law, ‘self-judging’ clauses of treaty termination under trade, investment and disarmament treaties, and the concept of the threat to the peace under Article 39 of the UN Charter. The principal findings of the chapter relate to the ways of eliminating subjective judgment in interpretation, and to the criteria of locating the observable elements of indeterminate ‘political’ notions included in treaties. The role of judicial review is also addressed to help interpreting indeterminate notions.
Life in the Flesh
Authors: Cooper Adam G. 
Published: January 2009

Abstract
Christianity is deeply interested in the living human body, since each body is a person, and each person a creature and image-bearer of God. The classic sources of the Christian tradition engender a spiritual philosophy that challenges the contemporary gnostic impulse to marginalize the body, to reduce it to meat. At the same time, a Christian metaphysics of the flesh affirms the human substructure as a bodily-spiritual synthesis. Since the person is an enfleshed spiritual being, the human body bears intrinsic personal meaning. In the three great mysteries of God's dealings with the universe—creation, incarnation, and resurrection—all material reality, but especially spirited, sensible, sexed, and social human flesh, is radically implicated. By dwelling in these mysteries, that is, by mentally and physically assimilating ourselves to the semitive and sacramental symbols that communicate their truth, we find that they have power to illumine whole vistas of knowledge that do not belong exclusively to the provenance of Christian revelation and belief, but are open to all people. In the light of the incarnate Christ, these other spheres of reality become especially luminous. With a Christian metaphysics of flesh, illuminated by the incarnation, we are able to address a number of pressing intellectual, ethical, and social questions about bodily life with philosophical integrity.
1 The Old Testament
Authors: Cooper Adam G. 
Published: January 2009

Abstract
The Hebrew Scriptures contain the seeds of later Christian theology of the body. Created by God, human flesh is integral to personal and relational constitution. Sacrificial flesh, manipulated in accordance with the divine mandate, becomes the means of purification from sin and the locus of spiritual communion with God. Flesh, as a metaphor for weakness and humility, creates in the human being the requisite vulnerability to suffer the action of divine mercy.
5 Martin Luther
Authors: Cooper Adam G. 
Published: January 2009

Abstract
Luther's theology is not sufficiently appreciated for its intensely incarnational and sacramental character. Recent Luther research has uncovered the intellectual roots of his thought in patristic and medieval sacramental theology, and his resultant and vigorous anti-spiritualizing impulse. Luther redefines ‘spiritual’ to mean not ‘non-material’, but impregnated with the Holy Spirit. In localizing himself in specific material and liturgical realities, God fills them with Spirit, imbues them with deifying power, and constitutes them as ‘the bodily word of the Gospel.’
Conferral
Authors: De Baere Geert 
Published: January 2009

AbstractThis chapter focuses on the specificity of the operation of the principle of conferral within EC external relations, as compared with internal Community competences. The most significant particularity is the great importance of the doctrine of implied competences. The chapter is divided into three sections, analysing respectively external competences explicitly granted to the Community in the EC Treaty, external competences not spelled out literally in the EC Treaty, but inferred from its text, and external competences based on general legal bases.
Managing the Vertical Axis
Authors: De Baere Geert 
Published: January 2009

AbstractThis chapter analyses two constitutional concepts of vital importance for the management of the vertical division of competences: the technique of mixity and the vertical aspect of the principle of consistency. In focusing on a technique that has developed specifically in the field of external relations, and on a principle which, in practice, has been found to have a more significant part to play in Union foreign policy than in its internal policies, the flexibility with which the Union legal order addresses the specific needs of external relations is brought to the fore.
Reframing Social Citizenship
Authors: Taylor-Gooby Peter 
Published: January 2009

AbstractRecent reforms in welfare states generate new challenges to social citizenship. Social citizenship depends on the readiness of voters to support reciprocity and social inclusion and their trust in welfare state institutions as services that will meet their needs. Reform programmes in most western countries combine New Public Management, linking market competition and regulation by targets to achieve greater efficiency and responsiveness to service-users, and welfare-to-work and make-work-pay activation policies to manage labour market change. Both developments rest on a rational actor approach to human motivation. The UK has pursued the reform programme with more vigour than any other major European country and provides a useful object less of its strengths and limitations. The book provides a detailed analytic account of social science approaches to agency. It shows that the rational actor approach has difficulties in explaining how social inclusion and social trust arise. Policies based on it provide weak support for these aspects of citizenship. It is attractive to policy-makers seeking solutions to the problem of improving the efficiency and responsiveness of welfare systems in a more globalised world, in which citizens are more critical and the authority of national governments is in decline. Recent reform programmes were undertaken to meet real pressures on existing patterns of provision. They have been largely successful in maintaining mass services but risk undermining social inclusion and eroding trust in public welfare institutions. In the longer term, they may destroy the social citizenship essential to sustain welfare states.
1 Social Citizenship Under Pressure
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractThis chapter discusses social citizenship and identifies three main components: reciprocity (necessary to support horizontal redistribution), social inclusion (supporting vertical redistribution), and trust in institutions (vital to the political legitimacy of the enterprise). It reviews current challenges to the welfare state from population ageing, changes in family and household patterns and in the labour market, the growing assertiveness of citizens, and other factors, and briefly examines government responses in Europe.
3 The Response of Government
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractThis chapter analyses responses to the pressures on social and public provision among European countries and at the level of the EU. It argues that attempts to develop common EU-wide social provision have been largely unsuccessful, while EU monetary and open market policies have transformed the economic context. Social policy reforms have developed mainly at the national level, in the shadow of European economic policies. While major differences remain between groupings of countries, two common directions can be identified. Social security benefit, employment, and labour market reforms strengthen work incentives and increasingly put the responsibility on individuals to pursue opportunities actively. New Managerialist policies in health, social care, and other services impose strict targets on providers and introduce competitive quasi-markets. Taken together these new policy directions imply a shift in the assumptions about social citizenship. Those involved as providers and users are expected to act as deliberative and pro-active rational actors, with individual opportunities and incentives playing a major role. Governments become increasingly concerned with equality of opportunity rather than outcome.
4 The Assumptive World of Welfare State Reform
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractThis chapter develops the arguments about individual rational action and social and public policy discussed in Chapters 2 and 3 and relates them to social science theories of agency. It argues that a central problem of social science is the reconciliation of the everyday life experience of individual choice and agency with the evidence that people behave in ways that are co-ordinated and largely cohesive in societies. It distinguishes individual rational actor traditions from those that stress the role of normative principles and of symbolic communication and expressiveness in action. It shows how the individual rational actor approach is increasingly attractive to policy makers, because it offers a framework in which policies can be developed and justified on the grounds that they reinforce an appropriate structure of incentives.
6 Rational Actors and Social Citizenship
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractThis chapter examines the arguments about whether social citizenship can be based on an individual rational actor logic or requires a framework of normative principles, embedded in the institutions of social provision and in policy-making. The arguments of Titmuss, Le Grand, and others about blood donorship, social care, and other areas where altruistic and humane rather than self-regarding values appear to be central are considered. Individual rational actor approaches can explain how reciprocity and a limited social inclusion may be sustained, as Chapter 4 showed. Analysis of social psychological, sociological, and economic evidence shows that a full understanding of trust rests on both the alignment of interest that a rational actor logic can explain and also the recognition of values of commitment and care in the trusted person. These are contradicted when action is driven by externally imposed incentives. The trust deficit is a central issue in rational actor reform of social provision.
7 Putting the Theory into Practice: The UK Experience
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractFor a number of reasons the reframing of social citizenship has been pursued more rapidly in the UK than in most other countries, so that national experience offers a useful object lesson in the strengths and weaknesses of rational actor reforms in the European context. This chapter analyses the reframing process in detail under successive governments, paying attention to the institutional structure of government departments, the part played by the Treasury, and the understanding of the challenges by the chief policy actors. It discusses the logic of policy reform in official documents and shows how rational actor assumptions predominate. The problems identified in relation to the new policies are chiefly to do with the difficulties of structuring incentives appropriately and of establishing a level playing field for equal opportunity policies. The issues that provider incentives may focus on the competitive advantage of their particular agency rather than public benefit, social inclusion may receive little support, and the value basis of social trust may be damaged receive insufficient recognition.
8 The NHS Reforms as a Response to First‐Order Challenges
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractChapters 8 and 9 seek to anchor the analysis of the previous three chapters in a concrete policy context by considering the impact of recent reforms in the field of UK health care. The NHS is the flagship of the British welfare state and at the heart of public sector reform. A New Public Management system (quasi-markets, strict targets and strong incentives for managers, regulation of quality from the centre, and better information for users) has transformed the service. Comparisons of changes in provision over time and between regions of the UK indicate considerable improvement at a time of increasing pressure on health care. However, these gains rest on substantially increased resources and there has been little improvement in cost-efficiency and productivity. Improvements for disadvantaged minorities are much less impressive. Public attitudes and responses display considerable disquiet with the reform programme, particularly in relation to confidence and trust.
9 Second‐Order Challenges: Disenchantment, Disquiet, and Mistrust
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractThis chapter explores public understanding of and responses to the reform programme in more detail. Analysis of attitude surveys, media discussions, and political debates shows that the NHS remains highly valued. The disquiet surrounding the reforms continues despite objective improvements in treatment for most groups. Detailed interviews with members of the public show that the managerial and market reforms are regarded as irrelevant by most people and that there is widespread concern that these changes are undermining staff commitment to the interests of service-users. Declining public trust and the sense that policy makers do not recognise public concerns are central to the debate.
10 Globalization, Inequality, and Diversity
Authors: Taylor‐Gooby Peter 
Published: January 2009

AbstractThis chapter considers the challenges to social citizenship resulting from greater diversity and inequality in a more globalized world. Migration has led to tensions in social provision in many western countries. Globalization and labour market change have generated greater inequality, and opportunities for social mobility seem to be declining. These changes generate substantial and growing challenges to the stability of welfare states. Evidence from recent studies, however, indicates that the problems can be addressed, provided that governments are willing to show political leadership and pursue policies that redistribute resources on a citizenship basis to mitigate inequalities and offer equal access to opportunities across all social groups.
A Grace to be Cultivated
Authors: Kekes John 
Published: January 2009

AbstractEnjoyment is an essential part of good lives. The development of a style of life is one way of achieving it. Moralism that stresses responsibility and ignores enjoyment makes good lives impossible and gives a bad name to morality. Although styles of life vary with individuals, reasonable and unreasonable ones can be distinguished. Styles of life described by Drabble, Trollope, and Woolf are examined.
Three‐Dimensional Morality
Authors: Kekes John 
Published: January 2009

AbstractMorality has universal, social, and personal dimensions. The context of enjoyment and styles of life is the personal dimension. The goods and conventions of these dimensions often conflict and none is overriding. There is no universally and impartially applicable blueprint for the reasonable resolution of such conflicts. Reasonable conflict-resolutions differ from case to case. The moralist, relativist, and egoist approaches to conflict-resolution are flawed. The right approach is pluralist and particularist. The conflicts of Eleazar and Flaubert are discussed.
An Enemy of Happiness
Authors: Kekes John 
Published: January 2009

AbstractThis chapter is about Cato whose moralizing style of life made him and those around him utterly miserable. His attitude was vanity, his manner self-righteous, and his dominant activity was to try to shore up the crumbling Roman Republic. His rigidity, refusal to compromise, and unfeeling moralism made him a precursor of a Kantian life that defeated his own purpose. The moral importance of self-knowledge and affection can be learnt here.
A Wise and Virtuous Man
Authors: Kekes John 
Published: January 2009

AbstractLooking at Hume's life and work it can be seen that Hume led an admirable life, fully enjoyed. Its style was reflective, its attitude sceptical, its manner moderate, and its project was a literary life that was Hume's ruling passion. He made the most of his talents and possibilities, he was eminently reasonable, and he lived and died contented. It can be seen how a reasonable person can cope with adversity, poverty, lack of appreciation, and yet prevail and enjoy success calmly without vindictiveness.