Chapter 3 challenges the tradition in comparative legal studies, which treats Germany exclusively as a representative of the Civil Law family. Through excerpts of leading German legal theorists of the twentieth century, the chapter demonstrates that there has always been resistance to the Civil Law orthodoxy in the German legal culture. This includes a survey of the Free Law Movement (Kantorowicz), the Pure Theory of Law (Kelsen), and the Radbruch Formula (Radbruch). The chapter concludes with a discussion of the Federal Constitutional Court’s Lüth Case, in which the Court announced the Basic Law’s “objective order of values.”

Emerging neurotechnology offers increasingly individualised brain information, enabling researchers to identify mental states and content. When accurate and valid, these brain-reading technologies also provide data that could be useful in criminal legal procedures, such as memory detection with EEG and the prediction of recidivism with fMRI. Yet, unlike in medicine, individuals involved in criminal cases will often be reluctant to undergo brain-reading procedures. This raises the question of whether coercive brain-reading could be permissible in criminal law. Coercive Brain-Reading in Criminal Justice examines this question in view of European human rights: the prohibition of ill treatment, the right to privacy, freedom of thought, freedom of expression, and the privilege against self-incrimination. The book argues that, at present, the established framework of human rights does not exclude coercive brain-reading. It does, however, delimit the permissible use of forensic brain-reading without valid consent. This cautionary, cutting-edge book lays a crucial foundation for understanding the future of criminal legal proceedings in a world of ever-advancing neurotechnology.

Moreso writes about a theory of law related to legal positivism that has been highly influential in the Latin world, namely, Luigi Ferrajoli’s garantismo, or theory of constitutional guarantees or warrants. He explains that the word ‘garantismo’ suggests a conception of law as a system of constitutional guarantees of human rights, and distinguishes two main ideas in Ferrajoli’s account: the separation thesis and the distinction between valid law and law in force. For Ferrajoli, the very idea of constitutional rights gives rise to a distinction between validity and social efficacy, because even though the legislature might enact a statute that violates a constitutional right, the statute might become socially effective, and this means that there might be legally invalid norms that are nevertheless in force. Moreso also introduces Ferrajoli’s distinction between a constitutionalism of guarantees and a constitutionalism of rights, which he criticises, arguing, in particular, that accepting the rule/principles distinction does not have to lead to lack of legal certainty. Finally, he points out that Ferrajoli is an inclusive legal positivist.

Brian considers the normativity of law within the framework of legal positivism, noting that the very idea of it has been understood differently by different authors. He proposes that we analyse the concept in terms of reasons for action, that such reasons must be something more than prudential reasons, that the proper question is whether law gives us reasons for actions of the relevant type that we would not have without law, and that Hume’s law makes this task difficult for legal positivists. He considers consequentialist justifications for the normativity of law proposed by Hobbes and Hume, Kelsen’s theory of the basic norm, Postema’s claim that the rule of recognition is a coordination convention, Shapiro’s planning theory of law, and Enoch’s triggering account, concluding that these accounts are all problematic in different ways. He observes that some authors see it as a specifically legal normativity that is neither moral nor prudential, while others conceive of it as moral normativity; he concludes that the former alternative needs elaboration and justification, while the latter is difficult to establish from within the legal positivist tradition.

Marmor considers the separation thesis, which he understands as saying that whether a given norm is legally valid depends on its sources, not its merits; and this means that he is concerned with the separation thesis conceived as a thesis about legal status, not as a thesis about the content of legal statements. Observing that the distinction between sources and merits is very close to the distinction between is and ought, he considers the objection that the separation thesis cannot be upheld because one cannot clearly distinguish between sources and merits, between is and ought. He responds to this objection, however, that the separation thesis can be upheld if it is seen as an answer to the question ‘What counts as law?’ rather than to the question ‘What is law?’, and that this response is in keeping with a common wish on the part of legal positivists to provide a reductive explanation of legal validity, that is, an explanation of legal validity exclusively in terms of social facts.

Kramer explains how H. L. A. Hart reinvigorated legal positivism by disconnecting it from the command theory of law defended by his predecessors Bentham and Austin; by introducing through his own theory of law some new and fruitful concepts into legal thinking, such as the internal point of view, the distinction between primary and secondary rules, and the idea of a rule of recognition; by clarifying the meaning of and reasons behind the separability of law and morality through considering the many different ways in which law and morality are, or could be, connected; and by introducing the idea of the minimum content of natural law and clarifying the relation between this and the separability of law and morality. Kramer explains: even though a legal system can fulfil its basic function of securing the conditions of civilisation only if it includes rules prohibiting murder, assault, fraud, etc., the relevant protection provided by the legal system against such misconduct need not be extended to all groups of citizens. Consequently, because no true moral principles would permit this, Hart’s account does not reveal any necessary connections between those principles and legal norms.

Bix considers that Joseph Raz might not be willing to accept that legal positivism is a theory, or stance, that is sufficiently well-defined to be captured in a few main tenets, thinking of it rather as a tradition of legal thinkers held together in a rather loose way. Bix focuses his discussion on Raz’s version of the social thesis, the so-called sources thesis, according to which all law is source-based, in the sense that the existence and content of the law is determined using exclusively factual (social) considerations. Bix considers Raz’s two main arguments in support of the sources thesis – the argument from authority and the argument from different functions – as well as certain objections to these arguments put forward by other legal philosophers.