Virtual Library

In Simón, the Argentine Supreme Court held that two amnesty laws, adopted in the late 1980s in order to shield authors of serious human rights violations committed during the so-called ‘Dirty War’ (1976–1983), were unconstitutional and void. Although the Argentine Congress had already repealed the two laws in 2003, uncertainty about the validity of this parliamentary decision had led to some controversy. With its decision in Simón, the Supreme Court puts an end to the legal uncertainty concerning the prosecution of serious human rights violations committed under the military regime and definitively clears the path for judicial actions against their authors. Setting aside deeply rooted national legal principles — such as statutory limitations, the principle of legality and amnesties — the Argentine Supreme Court has confirmed the role of human rights principles and of public international law in general in dealing with the most heinous crimes against humanity.

Many people were elated when Supreme Court Chief Justice Earl Warren delivered Brown v. Board of Education of Topeka in May 1954, the ruling that struck down state-sponsored racial segregation in America's public schools. Thurgood Marshall, chief attorney for the black families that launched the litigation, exclaimed later, "I was so happy, I was numb." The novelist Ralph Ellison wrote, "another battle of the Civil War has been won. The rest is up to us and I'm very glad. What a wonderful world of possibilities are unfolded for the children!" 

Here, in a concise, compelling narrative, Bancroft Prize-winning historian James T. Patterson takes readers through the dramatic case and its fifty-year aftermath. A wide range of characters animates the story, from the little-known African-Americans who dared to challenge Jim Crow with lawsuits (at great personal cost); to Thurgood Marshall, who later became a Justice himself; to Earl Warren, who shepherded a fractured Court to a unanimous decision. Others include segregationist politicians like Governor Orval Faubus of Arkansas; Presidents Eisenhower, Johnson, and Nixon; and controversial Supreme Court justices such as William Rehnquist and Clarence Thomas. Most Americans still see Brown as a triumph—but was it? Patterson shrewdly explores the provocative questions that still swirl around the case. Could the Court—or President Eisenhower—have done more to ensure compliance with Brown? Did the decision touch off the modern civil rights movement? How useful are court-ordered busing and affirmative action against racial segregation? To what extent has racial mixing affected the academic achievement of black children? Where indeed do we go from here to realize the expectations of Marshall, Ellison, and others in 1954?

The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical, and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political, and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.

Social and cultural changes have led to free speech claims being made in novel contexts: to challenge the validity of bans on tobacco advertising, to publish 'kiss and tell' stories about celebrities, and to resist attempts to regulate the Internet. In this fully revised and updated new edition of his classic work, Barendt considers the meaning and scope of freedom of speech. How far should free speech and expression clauses go to protect pornography, commercial advertising, and public meetings on the streets? Does this freedom cover desecration of a national flag? Does it include nude dancing?

Eric Barendt discusses the legal protection of free speech in countries including England, the United States (including recent decisions of the United States Supreme Court), Canada, and Germany. He examines the varied approaches of different legal systems and constitutional traditions to balancing free speech and freedom of the press against rights to reputation, privacy, and copyright, and explores case law in light of the philosophical and political arguments for free speech guarantees.

This book explains and critiques the position adopted by the UK Supreme Court on disputes involving human rights, especially those protected by the Human Rights Act 1998. Building upon the fact that the UK Supreme Court, which began operating in 2009, has inherited case law developed over many decades by the Appellate Committee of the House of Lords, the book considers whether the Supreme Court’s current views are internally consistent and externally in line with the standards adopted by the European Court of Human Rights in Strasbourg. After three chapters which describe the origins of the Supreme Court and analyse its jurisprudence on the concept of human rights and on the procedural dimensions of the Human Rights Act 1998, the book examines how the Court (and the House of Lords before it) has interpreted the principal Convention rights that are given effect in UK law by the 1998 Act. It finds in relation to almost every right that the top UK court has been unduly cautious and restrained, either because it does not wish to tread on the toes of Parliament or because it is unwilling to go further in protecting human rights than the European Court of Human Rights has already gone. The book pays particular attention to instances in which decisions of the top domestic court have been overturned in Strasbourg and to the occasions on which there has been a prolonged ‘dialogue’ between the two courts over a contentious issue.

The demise of custom as a source of international law has been widely forecasted. This is because both the nature and the relative importance of custom’s constituent elements are contentious. At the same time, custom has become an increasingly significant source of law in important areas such as human rights obligations. Codification conventions, academic commentary, and the case law of the International Court of Justice (the Court) have also contributed to a contemporary resurrection of custom. These developments have resulted in two apparently opposing approaches, which Roberts terms “traditional custom” and “modern custom.” The renaissance of custom requires the articulation of a coherent theory that can accommodate its classic foundations and contemporary developments. This article seeks to provide an enriched theoretical account of custom that incorporates both the traditional and the modern approaches rather than advocating one approach over the other.

Dworkin begins with the question that is at the heart of the whole legal system: in difficult cases how do (and how should) judges decide what the law is? He shows that judges must decide hard cases by interpreting rather than simply applying past legal decisions, and he produces a general theory of what interpretation is—in literature as well as in law—and of when one interpretation is better than others. Every legal interpretation reflects an underlying theory about the general character of law: Dworkin assesses three such theories. One, which has been very influential, takes the law of a community to be only what the established conventions of that community say it is. Another, currently in vogue, assumes that legal practice is best understood as an instrument of society to achieve its goals. Dworkin argues forcefully and persuasively against both these views: he insists that the most fundamental point of law is not to report consensus or provide efficient means to social goals, but to answer the requirement that a political community act in a coherent and principled manner toward all its members. He discusses, in the light of that view, cases at common law, cases arising under statutes, and great constitutional cases in the Supreme Court, and he systematically demonstrates that his concept of political and legal integrity is the key to Anglo-American legal theory and practice.

In this well-known critique, Duncan Kennedy argues that legal education reinforces class, race, and gender inequality in our society. However, Kennedy proposes a radical egalitarian alternative vision of what legal education should become, and a strategy, starting from the anarchist idea of workplace organizing, for struggle in that direction. Legal Education and the Reproduction of Hierarchy is comprehensive, covering everything about law school from the first day to moot court to job placement to life after law school. Kennedy’s book remains one of the most cited works on American legal education.

A la fois théorique et pratique, le livre de Mireille Delmas-Marty propose une recomposition des paysages juridiques nationaux et internationaux. L’auteur plaide pour un droit commun, dans tous les sens du terme: accessible à tous au lieu d’être réservé aux seuls interprètes officiels, commun également aux différents secteurs du droit malgré la spécialisation croissante; commun enfin à divers États, qui n’abandonneraient pas pour autant leur identité. Sans renoncer aux acquis de la pensée juridique traditionnelle, Mireille Delmas-Marty montre que la rigueur du raisonnement peut aussi s’appliquer à des objets instables ou imprécis. Partant des droits de l’homme, l’auteur propose de fonder un droit des droits dont l’objectif serait de rapprocher, et non d’unifier, les différents systèmes.