Challenges to Legal Theory: Essays in Honour of Professor José Iturmendi Morales

Challenges to Legal Theory offers the reader a fascinating journey through a variety of multi-disciplinary topics, ranging from law and literature, and law and religion, to legal philosophy and constitutional law. The collection reflects some of the challenges that the field of legal theory currently faces. It is compiled by a selection of international and Spanish scholars, whose essays are made available in English translation for the first time. The volume is based on a collection of essays, published in Spanish, in honour of Professor José Iturmendi Morales, of Complutense University, Madrid, and brings the rich scholarship of pre-eminent Spanish scholars of law and legal theory to an international audience. Half Title Title Page Copyright Page Contents Notes on Contributors Part 1 Introduction 1 Tribute to Professor José Iturmendi Morales: About the Man 2 About the Book Part 2 Law and Literature Revenge in Literature 1 Antigone vs. Creon 2 Vengeance vs. Forgiveness in the Bible 3 William Shakespeare (1564–1616) 3.1 King Lear vs. His Traitor Daughters 3.2 Antonio vs. Shylock 3.3 Hamlet vs. Claudius 4 Michael Kohlhaas vs. Von Tronka 5 The Count of Monte Cristo vs. His Traitor and False Friends Arbitration and Literature 1 Introduction 2 The Two Functions of Justice 3 A Superior Justice 4 A Grotesque or Corrupt Justice 5 On the Fringes of Justice Clarín, Jurist 1 Justification 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Some Brief Notes on Ezra Pound and Roman Law The Undeniable Humanism of Concepción Arenal Part 3 Constitutional Law Legal Interpretation 1 Resolving Indeterminacies as to the Content of the Law 2 Working out the Requirements of Abstract Legal Provisions 3 Deciding What Is Just 3.1 Interpretation of Practices? 3.2 Interpretation of Convictions? 4 Equitable Interference with Legal Duties or Powers or Rights 5 Understanding the Law 6 Conclusion Further Reading The Constitutional Order: Reforms and Ruptures 1 Preliminary Remarks 1.1 Legal Order and Constitutional Order 1.2 The Revolutionary Origins of the Constitutional System 1.3 Defense of the Law and the Right of Resistance 1.4 Defense of the Law and Inviolability of the Constitution 1.5 Supremacy of the Constitution and Defense of the Law 1.6 Constitutional Amendment and Mutation Normative Provisions and Legal Norms:: A Useful Distinction 1 Introduction 2 Normative Provisions and Legal Norms 3 Various Combinations of Provisions and Norms9 3.1 One Provision Is Considered the Expression of Several Norms in Conjunction 3.2 One Provision Is Considered the Expression of Several Alternate Norms 3.3 Several Provisions Are Considered the Expression of Identical Norms 3.4 The Legal Norm Is Derived from Several Provisions 4 The Relevance and Usefulness of the Distinction between Provisions and Norms 4.1 It Explains the Effect of Social Reality as an Interpretive Criterion 4.2 It Explains the Difference between Express and Implied Repeals 4.3 It Serves to Comprehend the Effect of Interpretive Rulings 4.4 It Offers a Different Perspective on Interpretation According to International Human Rights Treaties 5 Conclusions Some Notes on Equality and Legal Equality 1 Discourses on Equality: A Few Tropes 2 A Preliminary Approach to the Concept 2.1 Descriptive Equality: Elements of Equality Judgment 2.2 Plurality of Terms 2.2.1 Common Standard of Measurement 2.2.2 Similarity 2.2.3 Difference 2.2.4 Juxtaposition 2.3 Descriptive Equality and Value Judgments 2.4 Prescriptive Equality 3 Equality in the Eyes of the Law (before the Law) 3.1 Legal Meaning 3.2 Terms of Comparison 3.2.1 Two Legal Sentences 3.2.2 Two Legal Sentences Bearing in Mind Their Practical Effects 3.3 Systematic Interpretation of a Set of Legal Sentences Considered Jointly 3.4 The Relevant Standard 4 Equality in Application of the Law 4.1 Legal Meaning 4.2 Terms of Comparison 4.2.1 The Precedent 4.2.2 Precedent as the Ratio Decidendi of One or Several Rulings (Model of Rules) 4.2.3 One or Several Rulings Related to an Individual Case (Model of Analogy)30 4.3 The Individual Case to Be Decided 4.4 The Judicial Authority On Equality 1 Equality and Inequality among Persons 2 Forfeited Freedom 3 Fair Treatment 4 My Position Part 4 Legal Philosophy The Law of Nations in Giambattista Vico Artificial Law and “Artificious” Rights 1 Introduction: Legal Evolution 2 Artificial Law 3 Artifice in Rights 4 Conclusion Bioethics and Legal Philosophy:: An Inevitable and Necessary Reflection 1 Introduction 2 From Metaethics to Normative Ethics 3 The Normative Dimension of Bioethics 4 Specific Characteristics and Thematic Areas of Bioethics 4.1 Characteristics 4.2 Thematic Areas 5 The Fundamental Guiding Principle of Bioethics: Respect for Human Dignity and Inalienable Rights as the Core of Legal Axiology 6 Closing Remarks Philosophical Reflection and the Law 1 The General Importance of Philosophy 2 Characterization of Philosophy 3 Inflection on the Law 4 The Tasks of Legal Philosophy 4.1 Brief Historical Outline 4.2 The Subtle Repercussions of Transformation 5 A Few Problematic Aspects 6 A Succinct Epilogue We Are All Vulnerable — Human Capability, Corporeality and Dignity: Functional Diversity Examined in the Light of Martha C. Nussbaum’s Commitment to Justice 1 Opening Remarks 2 Corporeality, Vulnerability, and Dependency: The Dimensions of Functional Diversity 3 Functional Diversity: Walking toward the Personal Autonomy Paradigm 4 Corporeal Vulnerability versus Social Vulnerability: Disability as a Universal Problem 5 Building a Life with Dignity Using the Capabilities Approach 6 Universal Accessibility: Achieving a “good life” for as Many People as Possible Part 5 Law and Religion Religious Autonomy and Labor Relations:: Reflections on Institutions with an Ethos 1 Introduction 2 Legal and Ethical Legitimacy of the Ethos 3 The Institutional Ethos and Fundamental Rights of Workers 4 The Right to Religious Autonomy 5 The Case Law of the European Union 6 The Case of Religion Teachers 7 The Ethos as a Legal Instrument and Cultural Element 8 Suggestions for Devising an Ethos Religion, Beliefs, and Freedom of Speech:: The Disorientation of the European Court of Human Rights 1 Introduction: A Deserved Tribute 2 Freedom of Speech and Information at a Historic Juncture 3 Freedom of Speech in the European Convention on Human Rights 4 Freedom of Speech and Religious Sentiments 4.1 A Conflict of Fundamental Rights? 4.2 The Principles of the European Court of Human Rights on Freedom of Speech and Religious Sentiments 4.3 Types of Cases Seen by the Court 5 Recent Case Law 5.1 Freedom of Speech and Islamist Speech 5.2 A Consistent Line of Reasoning? The Insult to Mohammad in Austria 5.3 A Bit of Punk Rock in Putin’s Honor (in an Orthodox Church) 5.4 Denim Fashion in Lithuania 6 Conclusion: Principles Exist, but Are They Applied? Index "Challenges to Legal Theory offers the reader a fascinating journey though a variety of multi-disciplinary topics, ranging from law and literature, and law and religion, to legal philosophy and constitutional law. The collection reflects some of the challenges that the field of legal theory currently faces. It is compiled by a selection of international and Spanish scholars, whose essays are made available in English translation for the first time. The volume is based on a collection of essays, published in Spanish, in honour of Professor José Iturmendi Morales, of Complutense University, Madrid, and brings the rich scholarship of pre-eminent Spanish scholars of law and legal theory to an international audience"-- Provided by publisher "Challenges to Legal Theory offers the reader a fascinating journey though a variety of multi-disciplinary topics, ranging from law and literature, and law and religion, to legal philosophy and constitutional law. The collection reflects some of the challenges that thefield of legal theory currently faces. It is compiled by a selection of international and Spanish scholars, whose essays are made available in English translation for the first time. The volume is based on a collection of essays, published in Spanish, in honour of Professor Josâe Iturmendi Morales, of Complutense University, Madrid, and brings the rich scholarship of pre-eminent Spanish scholars of law and legal theory to an international audience"-- Provided by publisher