The Nature and Functions of Law / Edition 5by Harold J. Berman
The distinguishing feature of this book is its focus on the special character of law in performing certain social functions. Presented are the salient aspects of criminal and civil procedure, alternative dispute resolution, aspects of judicial reasoning on the basis of precedents, especially in cases of manufacturer's liability in tort, certain aspects of the law… See more details below
The distinguishing feature of this book is its focus on the special character of law in performing certain social functions. Presented are the salient aspects of criminal and civil procedure, alternative dispute resolution, aspects of judicial reasoning on the basis of precedents, especially in cases of manufacturer's liability in tort, certain aspects of the law of contracts, and aspects of international human rights law, including race law, and gender law, both at the national and international levelnot in order to present a composite picture of the whole legal system but in order to test the success of the legal system in carrying out its basic purposes.
As in previous editions, it includes relevant materials on comparative and international law. In this edition the international and comparative aspect of the law has been given a special and extended emphasis. Indeed, the most significant revisions and additions to the text are meant to highlight and reflect, primarily, the requirements of 21st century legal education and legal practice in an increasingly complex and globalized world. The emphasis has been on 'blending' and 'harmonizing' the national with the international by placing the study of American law in the context of comparative and world law. Thus, in the first two chapters of the text which deal with jurisdiction and civil procedure prior to trial, problems raised in international civil litigation in international cases in U.S. Courts are given brief treatment. Included are materials dealing with the acquisition of judicial jurisdiction over foreign defendants, problems of service of process abroad, forum selection, gathering evidence abroad, the Foreign SovereignImmunities Act, and the Alien Torts Act. Emphasis is placed on the Hague Service of Process and the Hague Evidence Conventions.
The concepts and methodology of earlier editions have been maintained. The main objective of this edition has been to bring the book up-to-date. Some parts of the previous edition have been streamlined, a chapter has been deleted to make room for new materials and a new chapter has been added. By closer editing, consolidation, and deletion the book retains its feasibility as a one semester, 45-hour course without sacrificing the essence of any of the topics.
Specific changes include:
Chapters one and two of Part One deal with jurisdiction and civil procedure prior to trial in international civil litigation in international cases in U.S. CourtsIn chapter five, which deals with alternative methods of dispute resolution (ADR), special attention is given to the enforcement of international arbitration in U.S. courts under the Federal Arbitration Act and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.Part Four of the new edition has been re-conceptualized to focus on the role of 'Law As a Process of Securing Fundamental Human Rights: Illustrations from National and International Law.' The primary purpose of Part Four's third chapter is to introduce students to the body of international human rights law that is constitutionally based on the United Nations Charter, the Universal Declaration of Human Rights, and on an impressive core of universal and regional human rights treaties and instruments.The two chapters on race and gender rights from the earlier edition are retained. A new Chapter 11 on 'International Law and Human Rights' has been added.
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