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  1. Larry Alexander (2001). The Rule of Rules: Morality, Rules, and the Dilemmas of Law. Duke University Press.
    In "The Rule of Rules" Larry Alexander and Emily Sherwin examine this dilemma.
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  2. Brian Bix (2004). A Dictionary of Legal Theory. Oxford University Press.
    Modern legal theory contains a wide range of approaches and topics: from economic analysis of law to feminist legal theory to traditional analytical legal philosophy to a range of theories about justice. This healthy variety of jurisprudential work has created a problem: students and theorists working in one tradition may have difficulty understanding the concepts and terminology of a different tradition. This book works to make terminology and ways of thinking accessible. This dictionary covers topics from 'the autonomy of law' (...)
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  3. Brian Bix (ed.) (1998). Analyzing Law: New Essays in Legal Theory. Oxford University Press.
    Analyzing Law offers an important selection of the most influential and challenging work now being done in legal theory. A central focus of the essays in this work is the contribution of the well-known philosopher Jules Coleman to the various topics which are covered by the contributors.
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  4. Brian Bix (1993). Law, Language, and Legal Determinacy. Oxford University Press.
    This book discusses one of the central problems in the philosophy of law--the question of legal determinacy. Is the law a seamless web or are there gaps? Bix argues that the major re-thinking of the common and "common sense" views about law that have been proposed by various recent legal theories is unnecessary. He offers a reconsideration of the role of language in the law, and the way ideas about language have been used and misused in recent legal theory. He (...)
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  5. Adrian Chan (2005). The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd Edition. Contemporary Political Theory 4 (3):347-349.
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  6. Roger Cotterrell (2000). Common Law Approaches to the Relationship Between Law and Morality. Ethical Theory and Moral Practice 3 (1):9-26.
    How are general relations of law and morality typically conceived in an environment of Anglo-saxon common law? This paper considers some classical common law methods and traditions as these have confronted and been overlaid with modern ideas of legal positivism. While classical common law treated a community and its morality as the cultural foundation of law, legal positivism's analytical separation of law and morals, allied with liberal approaches to legal regulation, have made the relationship of legal and moral principles more (...)
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  7. Su Gu (2006). Li Xiang Guo Yi Hou: Zheng Zhi Zhe Xue Yu Fa Xue Lun Zha = Essays on Political Philosophy and Jurisprudence. Jiangsu Ren Min Chu Ban She.
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  8. Susan Haack (2008). What's Wrong with Litigation-Driven Science? An Essay in Legal Epistemology. Midwest Studies in Philosophy, 32:20-35.
    Rehearing Daubert on remand from the Supreme Court, Judge Kozinski introduced a fifth "Daubert factor" of his own: that expert testimony is based on "litigation-driven science" is an indication that it is unreliable. This article explores the role this factor has played in courts' handling of scientific testimony, clears up an ambiguity in "litigation-driven" and some uncertainties in "reliable," and assesses the reasons courts have given for reading such research with suspicion. This analysis reveals that research that is litigation-driven in (...)
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  9. Lucinda Vandervort (1985). Empirical Uncertainty and Legal Decision-Making. In Eugenio Bulygin, Jean Louis Gardies & Ilkka Nilniluoto (eds.), LAW AND MODERN FORMS OF LIFE, with an introduction by Michael D. Bayles, volume 1, Law and Philosophy Library, pp. 251-261. D. Reidel Publishing.
    In this paper I argue that the rationality of law and legal decision making would be enhanced by a systematic attempt to recognize and respond to the implications of empirical uncertainty for policy making and decision making. Admission of uncertainty about the accuracy of facts and the validity of assumptions relied on to make inferences of fact is commonly avoided in law because it raises the spectre of paralysis of the capacity to decide issues authoritatively. The roots of this short-sighted (...)
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Descriptive Jurisprudence
  1. Veronica Rodriguez Blanco (2006). The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited. Ratio Juris 19 (1):26-54.
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  2. Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112.
    I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist (...)
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  3. Kenneth M. Ehrenberg (2009). Defending the Possibility of a Neutral Functional Theory of Law. Oxford Journal of Legal Studies 29 (1):91.
    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...)
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  4. Joseph S. Fulda (2010). The Logic of “Asked and Answered!”: The Case of the Traffic Light. Ratio Juris 23 (2):282-287.
    Uses erotetic logic to model the courtroom objection "Asked and Answered!".
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  5. Joseph S. Fulda (2000). The Logic of “Improper Cross”. Artificial Intelligence and Law 8 (4):337-341.
    Uses erotetic logic to model the courtroom objection "Improper Cross!". -/- Readers downloading the article should also please download the erratum et corrigendum, which is locally available.
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  6. Joseph S. Fulda (1989). The Logic of the Whole Truth. Rutgers Computer and Technology Law Journal 15 (2):435-446.
    Note: The author holds the copyright, and there was no agreement, express or implied, not to use a facsimile PDF. -/- Using erotetic logic, the paper defines the "the whole truth" in a manner consistent with U.S. Supreme Court precedent. It cannot mean "the whole story," as witnesses in an adversary system are permitted /only/ to answer the questions put to them, nor are they permitted to speculate, add irrelevant material, etc. Nor can it mean not to add an admixture (...)
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  7. Jaap C. Hage, Ronald Leenes & Arno R. Lodder (1993). Hard Cases: A Procedural Approach. [REVIEW] Artificial Intelligence and Law 2 (2):113-167.
    Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...)
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  8. Andreas Hamfelt (1995). Formalizing Multiple Interpretation of Legal Knowledge. Artificial Intelligence and Law 3 (4):221-265.
    A representation methodology for knowledge allowing multiple interpretations is described. It is based on the following conception of legal knowledge and its open texture. Since indeterminate, legal knowledge must be adapted to fit the circumstances of the cases to which it is applied. Whether a certain adaptation is lawful or not is measured by metaknowledge. But as this too is indeterminate, its adaptation to the case must be measured by metametaknowledge, etc. This hierarchical model of law is quite well-established and (...)
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  9. Ori J. Herstein (2013). A Legal Right to Do Legal Wrong. Oxford Journal of Legal Studies (1):gqt022.
    The literature, as are the intuitions of many, is sceptical as to the coherence of ‘legal rights to do legal wrong’. A right to do wrong is a right against interference with wrongdoing. A legal right to do legal wrong is, therefore, a right against legal enforcement of legal duty. It is, in other words, a right that shields the right holder’s legal wrongdoing. The sceptics notwithstanding, the category of ‘legal right to do legal wrong’ coheres with the concepts of (...)
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Normative Jurisprudence
  1. Jami L. Anderson (1997). Reciprocity as a Justification for Retributivism. Criminal Justice Ethics 16 (1):13-25.
    Retributivism is regarded by many as an attractive theory of punishment. Its primary assumption is that persons are morally responsible agents, and it demands that the social practices of punishment acknowledge that agency. But others have criticized retributivism as being barbaric, claiming that the theory is nothing more than a rationalization for revenge that fails to offer a compelling non-consequentialist justification for the infliction of harm. Much of the contemporary philosophical literature on retributivism has attempted to meet this criticism. One (...)
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  2. Göran Duus-Otterström (2013). Why Retributivists Should Endorse Leniency in Punishment. Law and Philosophy 32 (4):459-483.
    This paper develops a retributivist argument for leniency in punishment. It argues that even retributivists who defend desert-based punishment have a reason, internal to their view, to prefer more lenient over more severe punishments when there are doubts concerning how much punishment an offender deserves. This is because retributivists should take an asymmetrical view to underpunishment and overpunishment, and because the likelihood of overpunishment goes up with the severity of punishment. The radicalness of the ensuing leniency depends on the strength (...)
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  3. Kenneth M. Ehrenberg (2011). Law is Not (Best Considered) an Essentially Contested Concept. International Journal of Law in Context 7:209-232.
    I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...)
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  4. Colin Farrelly & Lawrence B. Solum (2007). An Introduction to Aretaic Theories of Law. In Colin Patrick Farrelly & Lawrence Solum (eds.), Virtue Jurisprudence. Palgrave Macmillan.
  5. Joseph S. Fulda (2007). Internet Stings Directed at Pedophiles: A Study in Philosophy and Law. Sexuality and Culture 11 (1):52-98.
    The article is intended to, in Sections I and II, flesh out and put within a metaphilosophical framework the theoretical argument first made in 2002 in “Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Questions” (Sexuality & Culture 6(4): 73–100), with some modifications (See note 14). Where there are differences, I stand by this version as the final version of the argument. Section III addresses three experimental or empirical studies which might be thought to contradict (...)
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  6. Thomas F. Gordon (1993). The Pleadings Game. Artificial Intelligence and Law 2 (4):239-292.
    The Pleadings Game is a normative formalization and computational model of civil pleading, founded in Roberty Alexy''s discourse theory of legal argumentation. The consequences of arguments and counterarguments are modelled using Geffner and Pearl''s nonmonotonic logic,conditional entailment. Discourse in focussed using the concepts of issue and relevance. Conflicts between arguments can be resolved by arguing about the validity and priority of rules, at any level. The computational model is fully implemented and has been tested using examples from Article Nine of (...)
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  7. Jaap C. Hage, Ronald Leenes & Arno R. Lodder (1993). Hard Cases: A Procedural Approach. [REVIEW] Artificial Intelligence and Law 2 (2):113-167.
    Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...)
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  8. Leonard Kahn (forthcoming). Review Essay: Legal Theory, Law, and Normativity. [REVIEW] The Journal of Moral Philosophy.
    Joseph Raz's new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz's topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz's thinking on these topics, I raise (...)
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  9. Linda J. Krieger (1987). Through A Glass Darkly: Paradigms of Equality and the Search for a Woman's Jurisprudence. Hypatia 2 (1):45 - 61.
    In this article, Ms. Krieger explores the controversy concerning pregnancy disability leave presented by the case of California Federal Savings v. Guerra in light of Thomas Kuhn's model of scientific paradigm change and Carol Gilligan's theory regarding sex differences in moral reasoning. She argues that the controversy reflects a period of paradigm crisis in equality jurisprudence, brought about in part by the recent inclusion of greater numbers of women into the jurisprudential community.
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  10. Matthew Lister (2011). The Legitimating Role of Consent in International Law. Chicago Journal of International Law 11 (2).
    According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...)
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  11. Matthew J. Lister (2011). Are Institutions and Empiricism Enough? [REVIEW] Transnational Legal Theory 2 (1).
    Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan's recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I (...)
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  12. Re'em Segev (2010). Is the Criminal Law (So) Special? Comments on Douglas Husak’s Theory of Criminalization. Jerusalem Review of Legal Studies 1 (1):3-20.
    This is Re'em Segev's contribution to the symposium on Douglas Husak's book "Overcriminalization.".
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  13. Re'em Segev (2008). Weighing Values and Balancing Interests. Israel Democracy Institute.
    One of the central normative questions regards a decision between conflicting moral values. A decision of this nature is often required in disciplines such as philosophy, economics and law. According to common terminology, a decision between conflicting values reflects a balance of values, considerations or interests. Several types of questions arise in this context. One category includes substantive questions: which values exist, which considerations should be derived from these values, what is the degree of importance of these considerations, and which (...)
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  14. François Tanguay-Renaud (2009). Making Sense of 'Public' Emergencies. Philosophy of Management (formerly Reason in Practice) 8 (2):31-53.
    In this article, I seek to make sense of the oft-invoked idea of 'public emergency' and of some of its (supposedly) radical moral implications. I challenge controversial claims by Tom Sorell, Michael Walzer, and Giorgio Agamben, and argue for a more discriminating understanding of the category and its moral force.
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  15. Robin West (2011). Normative Jurisprudence: An Introduction. Cambridge University Press.
    Machine generated contents note: 1. Revitalizing natural law; 2. Legal positivism, censorial jurisprudence, and legal reform; 3. Critical legal studies - the missing years; 4. Reconstructing normative jurisprudence.
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  16. Robin West (2009). Toward Normative Jurisprudence. In Francis J. Mootz (ed.), On Philosophy in American Law. Cambridge University Press. 55.
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Conceptual Analysis in Jurisprudence
  1. Lennart Åqvist (2007). An Interpretation of Probability in the Law of Evidence Based on Pro-Et-Contra Argumentation. Artificial Intelligence and Law 15 (4):391-410.
    The purpose of this paper is to improve on the logical and measure-theoretic foundations for the notion of probability in the law of evidence, which were given in my contributions Åqvist [ (1990) Logical analysis of epistemic modality: an explication of the Bolding–Ekelöf degrees of evidential strength. In: Klami HT (ed) Rätt och Sanning (Law and Truth. A symposium on legal proof-theory in Uppsala May 1989). Iustus Förlag, Uppsala, pp 43–54; (1992) Towards a logical theory of legal evidence: semantic analysis (...)
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  2. Emanuela Ceva & Andrea Fracasso (2010). Seeking Mutual Understanding. A Discourse Theoretical Analysis of the WTO Dispute Settlement System. World Trade Review 9 (3):457-485.
    The WTO Dispute Settlement System (DSS) has been the object of many studies in politics, law, and economics focusing on institutional design problems. This paper contributes to such studies by accounting for the argumentative nature and sophisticated features of the DSS through a philosophical analysis of the procedures through which it is articulated. Jürgen Habermas's discourse theory is used as a hermeneutic device to disentangle the types of ‘orientations’ (compromise, consensus, and mutual understanding) pertaining to DSS procedures. We show that (...)
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  3. Kenneth M. Ehrenberg (2011). Law is Not (Best Considered) an Essentially Contested Concept. International Journal of Law in Context 7:209-232.
    I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...)
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  4. Kenneth M. Ehrenberg (2009). Defending the Possibility of a Neutral Functional Theory of Law. Oxford Journal of Legal Studies 29 (1):91.
    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...)
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  5. Joseph S. Fulda (2007). Internet Stings Directed at Pedophiles: A Study in Philosophy and Law. Sexuality and Culture 11 (1):52-98.
    The article is intended to, in Sections I and II, flesh out and put within a metaphilosophical framework the theoretical argument first made in 2002 in “Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Questions” (Sexuality & Culture 6(4): 73–100), with some modifications (See note 14). Where there are differences, I stand by this version as the final version of the argument. Section III addresses three experimental or empirical studies which might be thought to contradict (...)
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  6. Jaap C. Hage, Ronald Leenes & Arno R. Lodder (1993). Hard Cases: A Procedural Approach. [REVIEW] Artificial Intelligence and Law 2 (2):113-167.
    Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...)
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  7. Andreas Hamfelt (1995). Formalizing Multiple Interpretation of Legal Knowledge. Artificial Intelligence and Law 3 (4):221-265.
    A representation methodology for knowledge allowing multiple interpretations is described. It is based on the following conception of legal knowledge and its open texture. Since indeterminate, legal knowledge must be adapted to fit the circumstances of the cases to which it is applied. Whether a certain adaptation is lawful or not is measured by metaknowledge. But as this too is indeterminate, its adaptation to the case must be measured by metametaknowledge, etc. This hierarchical model of law is quite well-established and (...)
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  8. Leonard Kahn (forthcoming). Review Essay: Legal Theory, Law, and Normativity. [REVIEW] The Journal of Moral Philosophy.
    Joseph Raz's new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz's topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz's thinking on these topics, I raise (...)
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  9. John Oberdiek & Dennis Patterson (2007). Moral Evaluation and Conceptual Analysis in Jurisprudential Methodology. In Michael D. A. Freeman & Ross Harrison (eds.), Law and Philosophy. Oxford University Press.
  10. Marek Piechowiak (2013). Prawne a pozaprawne pojęcia dobra wspólnego [Legal and Extralegal Notions of Common Good]. In Wojciech Arndt, Franciszek Longchamps de Bérier & Krzysztof Szczucki (eds.), Dobro wspólne. Teoria i praktyka. Wydawnictwo Sejmowe. 23-45.
    Opracowanie dotyczy relacji konstytucyjnego pojęcia „dobro wspólne” z art. 1 Konstytucji RP, do pozaprawnych pojęć dobra wspólnego. Bezpośredni asumpt do jego przygotowania dało zdanie odrębne sędziego Trybunału Konstytucyjnego Zbigniewa Cieślaka do wyroku TK z dnia 20 kwietnia 2011 r. w sprawie Kp 7/09, dotyczącej zmian w prawie budowlanym. Jest to w ogóle najobszerniejsza wypowiedź w całym dotychczasowym orzecznictwie TK poświęcona wprost problematyce dobra wspólnego. Sędzia Z. Cieślak wyraźnie odróżnił prawne pojęcie dobra wspólnego – jego zdaniem właściwe dla interpretacji klauzuli dobra (...)
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  11. Marek Piechowiak (ed.) (2008). Norm and Truth. School of Humanities and Journalism.
    Truth seems to be an indispensable element of authority which presents itself as being based on more than just power and efficiency. In the domain of law,there is not only and primarily the problem of establishing the truth about the facts which are to be judged; there is also the problem of norms—does their authority rest solely on the act of establishing them, or is there “something behind”, a truth which contributes to the strength of law, and which provides legitimacy (...)
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Naturalism in Jurisprudence
  1. Michael Steven Green (2008). Kelsen, Quietism, and the Rule of Recognition. In Matthew D. Adler & Kenneth E. Himma (eds.), THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION. Oxford University Press.
    Sometimes the fact that something is the law can be justified by the law. For example, the Sarbanes-Oxley Act is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity in a legal system cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls (...)
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  2. Kevin Magill (1998). The Idea of a Justification for Punishment. Critical Review Of International Social And Political Philosophy 1 (1):86-101.
    The argument between retributivists and consequentialists about what morally justifies the punishment of offenders is incoherent. If we were to discover that all of the contending justifications were mistaken, there is no realistic prospect that this would lead us to abandon legal punishment. Justification of words, beliefs and deeds, can only be intelligible on the assumption that if one's justification were found to be invalid and there were no alternative justification, one would be prepared to stop saying, believing or doing (...)
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  3. Thomas Nadelhoffer (2006). Bad Acts, Blameworthy Agents, and Intentional Actions: Some Problems for Juror Impartiality. Philosophical Explorations 9 (2):203 – 219.
    In this paper, I first review some of the recent empirical work on the biasing effect that moral considerations have on folk ascriptions of intentional action. Then, I use Mark Alicke's affective model of blame attribution to explain this biasing effect. Finally, I discuss the relevance of this research - both philosophical and psychological - to the problem of the partiality of jury deliberation. After all, if the immorality of an action does affect folk ascriptions of intentionality, and all serious (...)
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Methodology of Jurisprudence, Misc
  1. Kenneth M. Ehrenberg (2009). Defending the Possibility of a Neutral Functional Theory of Law. Oxford Journal of Legal Studies 29 (1):91.
    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...)
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  2. Joseph S. Fulda (2007). Internet Stings Directed at Pedophiles: A Study in Philosophy and Law. Sexuality and Culture 11 (1):52-98.
    The article is intended to, in Sections I and II, flesh out and put within a metaphilosophical framework the theoretical argument first made in 2002 in “Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Questions” (Sexuality & Culture 6(4): 73–100), with some modifications (See note 14). Where there are differences, I stand by this version as the final version of the argument. Section III addresses three experimental or empirical studies which might be thought to contradict (...)
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