Law students routinely forget that the legal tradition has been concerned with fact finding for centuries. The entire body of evidence law has evolved for two important purposes: ensuring that the evidence presented to a court is legally admissible; and ensuring that the evidence presented to the court is reliable so that the tribunal of fact is able to draw conclusions about whether or not an alleged fact existed in circumstances where the tribunal of fact has not witnessed the event for itself. Legal reasoning is empirically grounded and draws upon centuries of human experience in the examination of materials of this kind. With that in mind, principles from evidence law can be used to help us to think about facts as part of the analysis of a legal problem. Indeed, turning your mind to the rich body of evidence law is essential. It is not possible in a book like this to engage with evidence law in any detail. Evidence law in Australia is comprehensively examined by several authoritative authors, to which the reader is referred to for detail.

The discipline of law is unique as a body of knowledge. It is both theoretical and applied. Abstract and concrete. Moral and amoral. Just and cruel. And at its heart is a moment in which the abstract is translated into concrete action, a process that depends on theoretical application to the physical world. That application is linked to the art of problem solving. Human beings are problem-solving animals. All of us possess skills and experiences that enable us to engage with obstacles and problems in life. A problem is characterised by some event, experience or situation where our usual methods of operating and achieving desired ends are slowed down, prevented from operating or simply no longer work in that environment. Failure to successfully navigate a problem creates a crisis, during which we engage in different forms of conduct and thinking to find a resolution. Crises operate on a spectrum. Some are life- threatening. Some are innocuous. But the underlying dynamic is much the same. Problem solving is an adaptive and evolved trait that humans share with other animals and that enables us to survive in changing environments.

Writing up your answer is shaped by context. As a student, you are often called upon to answer a problem question in a specific format, such as a memorandum or letter of advice, with the added complication of a word limit. Students are often not aware that the requirement to write in a particular manner, with specific limits, is a pedagogical tool intended to reflect the kinds of documents used in practice, along with the need to strike a balance between accuracy and brevity. Being able to write sharply is an important skill in practice. Practitioners are also restricted by context. By now you should have a sense that the process is a complex one, and part of the art of lawyering is being able to translate complexity in ways that different audiences need to understand the situation. A person without legal training needs to have things explained as simply as possible. A practitioner will need the necessary detail, but keep in mind that time is money, and verbose correspondence is unnecessary and not appreciated. A barrister will need all the relevant information presented in such a way that the issues and complexities are clear and sharply identified.

In this chapter the aim is to undertake something of a guided analysis of a problem and apply the principles discussed so far. To that end, let’s now return to the problem set out in Appendix A. For this exercise, it is useful to begin by making notes, both of the information within the hypothetical and of the law. Using the steps explored in the last chapter as a guide, simply begin by reading the hypothetical in Appendix A. Note the people involved, the event(s), and especially the question you have been asked. Make some notes on your initial thoughts, before looking back over the Chapter 5 context. Then begin a systematic examination of the information.

Problem solving is an art form, which takes years of practice, experience, a thorough understanding of the law, and a thorough understanding of human behaviour. This chapter presents some basic ideas to set you on the path. There are several steps involved in dealing with a problem. Please keep in mind that legal reasoning is not linear, although it can be. Much depends on the nature of the problem. It involves the ability to proceed in a linear, logical approach in some cases, and a universal, nomadic approach in others. In this chapter we look at strategies for problem solving. Up to now we have talked about way of thinking about law and fact in the context of a problem solving analytic. The discussion is then steered towards application. Two approaches are suggested: one basic, the other advanced. Both approaches are outlined here. The model you choose really depends on your purpose and the depth of analytical detail needed.

You will have seen that a significant part of legal reasoning is linked to interpretation, and that the law plays an important part in shaping the rules of interpretation. This is especially true in the interpretation of legislation, which forms most of the conceptual terrain in which contemporary criminal law is located. This chapter introduces some of the core concepts linked to statutory interpretation principles applicable to the criminal law. Please note that this is by no means a comprehensive review but serves as an introductory overview.

Law is an applied and theoretical discipline. To that end, the law must be applied to the facts available when assessing the alignment of the facts with the law. In this respect law is an empirical discipline, one that requires objective fact and law in association with one another in its application. Evidence must exist to establish fact, while law must exist to establish the rule structure. The relationship between law and evidence is unique, for it is not simply the existence of objectively present objects that will establish the fact – the fact in law is subject to further legal construction through the laws of evidence. One aspect of that process is an object or event that has actual existence may not, as a matter of law, be available to the decision maker because of legal invalidity. Hence the empirical foundations of law are based on admissible evidence rather than mere evidence. This will be considered in more detail in Chapter 3.

This chapter distinguishes solidarity as a legal concept (LS) from solidarity as a social practice (SP). It matters for our understanding of the law to reflect on how, when and why law is able to interact with solidaristic practices. Section 1.1 explores the distinction. Section 1.2 stresses the ubiquity of solidarity in the law, from the traditional private law understanding of obligatio in solidum, to solidarity as a cohesive social force, to solidarity as a source of state duties. Section 1.3 shows that, despite its omnipresence, solidarity is an underinvestigated legal concept. Section 1.4 offers a typology of interactions between SP and the law, to show the many ways in which legal scholars may relate to SP. I list several types of interaction, and object to one. I argue that law cannot command us to act solidaristically since solidarity presupposes an intimate form of identification with others. But law may disrupt solidarities, sometimes in morally justified ways; it may compensate for the failing solidarity, recognizing and integrating it; and it may foster solidarity by its status-generative function, albeit merely in an indirect and not often controllable way.

According to Kant, it is possible to differentiate between legitimate and illegitimate laws by means of a certain formal procedure. His criterion for the legitimacy of a draft law is whether or not it corresponds to the ‘General Will’ of a people. The test question Kant has in mind is this: could a people give its consent to a proposed particular law? This chapter discusses the question of how this ‘General Will Test’ (GWT) is related to the Categorical Imperative (CI). As it will turn out, normatively valid laws are justified, in Kant’s view, by the fact that their content is established in a significantly non-ideal way, by a quasi-CI, namely the GWT. Thus, an intermediary position between the two mutually exclusive standard interpretations of Kant’s political philosophy is defended: the ‘derivation reading’ and the ‘separation reading’.

The scholarly discussion of Kant’s republicanism focuses heavily on his ‘negative’ conception of freedom: independence or not being subject to another master. What has received much less attention is Kant’s ‘positive’ conception of freedom: being subject to one’s own legislation. This chapter argues that Kant’s positive conception of external freedom plays a crucial role in his Doctrine of Right: external freedom in the negative sense (mutual independence) requires and is realized by freedom in the positive sense (joint self-legislation). After first discussing the ‘innate right to freedom’, it is shown that, on Kant’s account, this fundamental right is realized fully only when external freedom is realized in both senses and in all three spheres of public right. Any satisfactory account of Kant’s republican theory must complement the focus on independence with an emphasis on citizenship and joint self-legislation.

Stephen Engstrom argues that judgments that amount to knowledge constitute the end of the faculty of understanding. This implies that true judgments and false judgments are not on par in relation to the attainment of this end. False judgments are incomplete realizations of the understanding whose explanation requires reference to a factor that prevents it from attaining its end. Engstrom takes this to show that truth is essential to judgment (and belongs to its form) whereas falsity is not. This is reflected in our original, a priori understanding of judgment, according to which the capacity to judge is the capacity to know (rather than the capacity, say, to judge either truly or falsely). In an appendix, Engstrom relates this account to the notion of objective validity.

The framework set out in this book reconceptualises the problem of dementia care as a problem of power and social exclusion. At every stage, the goal should be to empower recipients of care to meet their own needs and participate fully in social life as equals, necessitating restrictions on the power of carers and radical changes to our cultural assumptions about and depictions of dementia. Though few would disagree that Western dementia care services are in need of reform, the book’s emphasis on social equality means that the depth and character of the proposed reforms differ significantly from many of those under public discussion. Indeed, as demonstrated in this chapter, significant changes would be needed to the way the UK treats people living with dementia under the law in order to support the reforms recommended in this book.

Olympiodorus provided his students in Alexandria in the sixth century with a handy summary of political science which I discuss and develop in Chapter 14. The following themes are introduced: the domain of political science (the realm of praxis, the life of soul in the material world, in the state or city, where political science directs other subordinate expertises); law (the primacy of law in an ideal city for humans); practical wisdom (its use of theoretical wisdom and difference from it); the goal (‘political’ happiness, involving the political virtues and preparing for a higher life); earthly and heavenly cities; the place of the philosopher in the city; Platonist texts concerning political science.

Chapter 19 shows that the ideas described in Chapter 18 can be found in the writings of Julian the Emperor. Julian speaks of a hierarchy of laws, going down from divine paradigmatic laws to the laws of nature and to human laws (both universal and regional). I also describe Julian’s concept of the ideal legislator, how it relates to Iamblichus’ views, and I give an example of Julian’s legislation, that concerning funeral processions, and describe how this legislation is explained by Julian as relating to metaphysical principles.

Chapter 20 presents the way in which Proclus interpreted the figure of the tyrant in Plato’s dialogues. Tyranny is based on force, violates law, both cosmic and human, and is motivated by a misled desire for power, power divorced from goodness and knowledge. I argue that Proclus and other Platonists, Damascius and Simplicius, could use this interpretation of Plato to describe the political regimes of their period, in particular the rule of Emperor Justinian, as tyrannies. These tyrannies, in their metaphysical ignorance and moral turpitude, violated divine order and law in destroying pagan temples and statues. I consider finally the cases of two authors, John Lydus and Procopius of Caesarea, who describe Justinian’s rule in terms of kingship or tyranny.

This chapter frames the adverse consequences of sanctions as a product of the interplay between government policy and commercial decision-making. It argues that corporate decision making about economic sanctions is an important factor behind the efficacy of sanctions. Commercial actors also play a central role in causing or amplifying the adverse consequences of sanctions. The chapter presents sanctions from a legal perspective, treating sanctions as legal rules that are limited by traditional notions of jurisdiction. At the same time, these rules contain significant ambiguities and are accompanied by heavy enforcement. Commercial actors respond by adopting risk avoidance strategies such as de-risking and overcompliance. These strategies produce adverse consequences for innocent populations, NGOs, and others that are not the stated targets of sanctions. The tendency for commercial actors to terminate trade relations beyond the actual terms of sanctions regulations is worth studying because it reveals a gap between the expectations of government policymakers and business practices. It can also make sanctions weaker and incentivize the creation of “unsanctioned” trade channels. The chapter concludes with a call for governments to clarify expectations about sanctions so that commercial actors do not face a dilemma between crippling compliance costs or crippling enforcement.

The introduction presents the aims, scope and structure of the book and discusses major historiographical issues: the role of empires in global history; that of slavery in the Atlantic world and that of serfdom in Eurasia; the great divergence debate; the historical meanings and practices of emancipation in a global perspective. The introduction then discusses the question of scales; the role of gender and law; the definitions of institutions, empires and capitalism as well as the qualification of coercion, resistance and agency.

Roman legal texts open a view onto the life and society of the empire at its height, its management, its peoples, their activities, interrelations, and problems, and their experiences when facing the juristic power of the state and its officials. Now, the first step in the study of these texts is the identification of the sources of the law. Sources are defined first as the mechanisms by which the law was introduced and regarded as authoritative by the Romans, and second the legal works transmitted to us by writers and compilers in the ancient world, which have been translated and analysed by modern scholars. This introduction offers a brief overview of these topics and some of the issues associated with the use of legal texts in the study of Roman social, economic, and political history.