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Philosophy of Law

Edited by Aness Webster (University of Nottingham)
Assistant editors: Renee Bolinger, Stephen Bero
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  1. added 2016-07-20
    Gary Lilienthal & Nehaluddin Ahmad (forthcoming). Deconstructing the Criminal Defence of Insanity. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-19.
    The significance of this article is in its deconstruction of the criminal insanity defence in a meta-legal critical context. The article’s objective is to critically review beliefs that the insanity defence was designed solely for public protection from insane violent people, or, for criminal deterrence. Arising from the long and continued use of the Roman Law concept of non compos mentis, the question arises as to what has become of the practical meaning of the term “insanity”, when used as a (...)
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  2. added 2016-07-19
    Diego M. Papayannis (2016). Independence, Impartiality and Neutrality in Legal Adjudication. Revus 28.
    This paper presents an analysis of the various dimensions of independence and impartiality. Among other things, I will argue that the two concepts, both of which are profoundly implicated in the rule of law, can be conceived as values and are perfectly distinguishable from each other. I will also propose a conception of neutrality, as a third distinct value that satisfies the requirement for non-redundancy with regard to independence and impartiality. Hence, judges and arbitrators must be independent, impartial and neutral. (...)
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  3. added 2016-07-18
    Kirk Ludwig (2016). Corporate Speech in Citizens United Vs. Federal Election Commission. SpazioFilosofico 16:47-79.
    In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the 5-4 majority, (...)
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  4. added 2016-07-18
    James E. Bruce (2013). Rights in the Law: The Importance of God's Free Choices in the Thought of Francis Turretin. Vandenhoeck & Ruprecht.
  5. added 2016-07-15
    Giuseppina Scotto di Carlo (forthcoming). Linguistic Patterns of Modality in UN Resolutions: The Role of Shall, Should, and May in Security Council Resolutions Relating to the Second Gulf War. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-22.
    This paper will discuss the role of modality in UN Security Council resolutions. As a work in progress on whether the use of strategic vagueness in UN resolutions has contributed to the outbreak of the second Gulf war, this work proposes a qualitative and quantitative analysis on the role of vagueness of the central modal verbs shall, should, and may in the institutional language of the UN, drawing upon Wodak’s Discourse-Historical Approach and Jenkins, Gotti, and Trosborg's theories on modality. Observing (...)
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  6. added 2016-07-15
    Paul Gowder (2015). What the Laws Demand of Socrates—and of Us. The Monist 4 (1):260-374.
    In historical and strategic context, the argument of the Laws in Plato’s Crito should be understood not as an argument for legal obedience in general, but as an argument against the public display of legal impunity (i.e., procured by bribery). Stable democratic authority requires the threat of mass collective action in support of the rule of law. But that threat is not credible without widespread trust by citizens in their fellows’ commitment to the law. Socrates’s impunity would have undermined that (...)
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  7. added 2016-07-12
    Kiyoung Kim (2015). The Contemporary Issues and Supreme Court. Chosun Law Institute.
    Once again the decision and court opinion are an element within the general understanding of law at least in the common law countries. A lawyerly way has implications in shaping the pattern of public administration, but in differing extent of public attraction or normative impact. -/- First, while the Constitution of United States had brought a popular democracy and Constitution-based structure of government, the Ancient Regime had been overhauled in new land. The “nobility” as a basis of government was dispelled, (...)
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  8. added 2016-07-11
    Kiyoung Kim (2014). Human Rights: Are They Just a Tweak for the Policy Makers or Administrators? EUROPEAN ACADEMIC RESEARCH 2 (6):7760-7783.
    The human rights often are cited as an ultimate goal for the discipline of social science. It guides the UN in the pursuit of its organizational mission, and the civil democratic government generally endorses this paradigm of state rule as supreme. Nonetheless, it seems a mishap if the human rights are thought to be valued only in the courtroom or police office. They are the kind of ubiquitous concept that we could share and must share, who would be the scientists (...)
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  9. added 2016-07-11
    Christian Piller (2006). ‘Kinds of Practical Reasons: Attitude-Related Reasons and Exclusionary Reasons’. In J. A. Pinto S. Miguens (ed.), Analyses. 98-105.
    I start by explaining what attitude-related reasons are and why it is plausible to assume that, at least in the domain of practical reason, there are such reasons. Then I turn to Raz’s idea that the practice of practical reasoning commits us to what he calls exclusionary reasons. Being excluded would be a third way, additional to being outweighed and being undermined, in which a reason can be defeated. I try to show that attitude-related reasons can explain the phenomena Raz (...)
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  10. added 2016-07-09
    John-Michael Kuczynski (2016). Right and Wrong. Amazon Digital Services LLC.
    In this book, it is shown that moral integrity is necessary for psychological integrity and, therefore, that it is not possible to live well without living ethically. In the process of establishing this profound truth, Dr. Kuczynski explains what right and wrong are and how we know the difference between the two.
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  11. added 2016-07-08
    Vera Willems (forthcoming). International Courts and Tribunals and Their Linguistic Practices: A Communities of Practice Approach. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-19.
    This paper argues that the framework of Community of Practice is beneficial for an understanding of the linguistic practices that international courts and tribunals employ in their interpretative approaches. Other than the frameworks of the social network, the speech community, and the epistemic community, the framework of Community of Practice can be said to allow for a more critical assessment of the social context in which international courts and tribunals function. Such an assessment is crucial in that it is in (...)
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  12. added 2016-07-06
    Kiyooung Kim (2015). The Legal Research and Issue of Death Penalty. EUROPEAN ACADEMIC RESEARCH 3 (6):6235-6261.
    The abolition of death penalty is one commonplace issue over global jurisdictions. Nevertheless, it is also true that a surfeit of research has been dealt either in any specific way of legal research or general method of social science. This tends to create a track of practice that they approach the issue in its own national standard of research or discrete logic and narrative. The author proposes an orthodox of legal research by exemplifying the issue of death penalty. By demonstrating (...)
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  13. added 2016-07-05
    Akira Inoue (forthcoming). Can Luck Egalitarianism Serve as a Basis for Distributive Justice? A Critique of Kok-Chor Tan’s Institutional Luck Egalitarianism. Law and Philosophy:1-24.
    This paper examines whether Kok-Chor Tan’s institutional luck egalitarianism is successful as a pluralist luck egalitarian theory of justice and morality. In recent years, pluralist luck egalitarianism has become a salient theory of justice. Tan’s pluralist proposal for institutional luck egalitarianism is attractive because it seems to refute the metaphysical and practical challenges against luck egalitarianism. This paper demonstrates that, although Tan’s institutional luck egalitarianism is indeed a most sophisticated systematic pluralist theory of justice and morality, his argument fails because (...)
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  14. added 2016-07-04
    Åsbjørn Melkevik (forthcoming). Four Concepts of Rules: A Theory of Rule Egalitarianism. European Journal of Political Theory:1474885116653366.
    This article outlines the foundations of a nomos-observing theory of social justice, termed ‘rule egalitarianism’, that explains how the seemingly contradictory merger of classical liberalism and social justice is conceivable. The first step towards such a theory consists in ensuring that a concern for the rule of law is etched in the very core of our understanding of social justice, in which case some egalitarian rules will be acceptable from a classical liberal viewpoint. The legal framework of capitalism can indeed (...)
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  15. added 2016-07-03
    Elena Z. Kireeva (forthcoming). Modality of Obligation as a Legal Phenomenon. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-22.
    This article discusses deontic modality in the context of legal documents and its divergence from the natural, conventional, interpretation. This work demonstrates that the meaning of the performative verb is not purely linguistic. A number of non-linguistic factors cause the variation of meanings of performatives, in this case, when expressing prohibition, permission, recommendation, advice, proposal or request. These factors include: status of the addressee, type of the relationship between the author and the addressee, type of the document, possibility of control (...)
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  16. added 2016-07-02
    Matthew E. Gladden (2016). Neural Implants as Gateways to Digital-Physical Ecosystems and Posthuman Socioeconomic Interaction. In Łukasz Jonak, Natalia Juchniewicz & Renata Włoch (eds.), Digital Ecosystems: Society in the Digital Age. Digital Economy Lab, University of Warsaw 85-98.
    For many employees, ‘work’ is no longer something performed while sitting at a computer in an office. Employees in a growing number of industries are expected to carry mobile devices and be available for work-related interactions even when beyond the workplace and outside of normal business hours. In this article it is argued that a future step will increasingly be to move work-related information and communication technology (ICT) inside the human body through the use of neuroprosthetics, to create employees who (...)
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  17. added 2016-06-28
    Tom Sorell (forthcoming). Online Grooming and Preventive Justice. Criminal Law and Philosophy:1-20.
    In England and Wales, Section 15 of the Sexual Offences Act criminalizes the act of meeting a child—someone under 16—after grooming. The question to be pursued in this paper is whether grooming—I confine myself to online grooming—is justly criminalized. I shall argue that it is. One line of thought will be indirect. I shall first try to rebut a general argument against the criminalization of acts that are preparatory to the commission of serious offences. Grooming is one such act, but (...)
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  18. added 2016-06-28
    Michael Hennessy Picard (forthcoming). “Iraqnophobia”: A Biomedical History of State-Rearing and Shock Doctrine in Iraq. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-34.
    The history of Western foreign policy in the Middle East has long assimilated Arab culture to sickness. Specifically, the biological episteme of “contamination” has shaped American foreign policy in the Gulf for decades. In so doing, the US Government continually borrowed references from the natural sciences to frame its foreign policy, leading some commentators to claim that biology supplanted philosophy and religion as the primary political category. The article analyses the semantics of Iraqnophobic metaphors, from the British experience of “nursing” (...)
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  19. added 2016-06-20
    Eirik Lang Harris (forthcoming). The Shenzi Fragments: A Philosophical Analysis and Translation. Columbia University Press.
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  20. added 2016-06-20
    A. P. Simester & Andreas Hirsch (2016). On the Legitimate Objectives of Criminalisation. Criminal Law and Philosophy 10 (2):367-379.
    We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.
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  21. added 2016-06-17
    Corey Brettschneider (forthcoming). Equality as a Basis for Religious Toleration: A Response to Leiter. Criminal Law and Philosophy:1-10.
    In this short essay, I respond to Brian Leiter’s Why Tolerate Religion. I focus on two criticisms. First, I argue that Leiter’s own theory depends on an unacknowledged ideal of equality, and that equality is central to the utilitarian and Rawlsian bases for religious toleration that he draws upon in his book. Second, I argue against Leiter’s allowing, in certain circumstances, the state to establish religion and to promote religious conceptions of the good.
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  22. added 2016-06-15
    Christopher Heath Wellman (2016). Introduction: Symposium on Justice & Foreign Policy. Law and Philosophy 35 (3):249-250.
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  23. added 2016-06-14
    Lucie Pacho Aljanati (forthcoming). Promoting Multilingual Consistency for the Quality of EU Law. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-13.
    The process of elaborating EU legislation includes the activity of translation. Drafting and translation cannot be considered separately but are rather two complementary activities whose aim is the quality of legislation. In order to achieve the required quality of legislation, one guiding principle is consistency of terminology. This study examines the particular case of two terms in German that appeared in the EC Treaty: Entscheidung and Beschluss. The inconsistent use of the two terms was the source of interpretative problems, as (...)
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  24. added 2016-06-13
    Tomonori Teraoka (forthcoming). A Court as the Process of Signification: Legal Semiotics of the International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-13.
    The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of the opinion, (...)
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  25. added 2016-06-13
    Sami Al-Daghistani (2016). Semiotics of Islamic Law, Maṣlaḥa. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 29 (2):389-404.
    The paper explores the role and meaning of maṣlaḥa and its possible appropriation in the field of Islamic legal and economic thought, as laid down by various medieval and contemporary Muslim scholars. Questions that are pertinent to the research are the following: how has maṣlaḥa been incorporated in legal reasoning and what kind of meaning does it convey; what type of economic reading does it presuppose; do ethics, law, and scriptural sources play equally important role as reference in developing the (...)
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  26. added 2016-06-10
    Sara Bernstein (forthcoming). Causal and Moral Indeterminacy. Ratio.
    This paper argues that several sorts of metaphysical and semantic indeterminacy afflict the causal relation. If, as it is plausible to hold, there is a relationship between causation and moral responsibility, then indeterminacy in the causal relation results in indeterminacy of moral responsibility more generally.
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  27. added 2016-06-07
    Federico Picinali (forthcoming). The Denial of Procedural Safeguards in Trials for Regulatory Offences: A Justification. Criminal Law and Philosophy:1-23.
    Regulatory offences are a complex phenomenon, presenting problematic aspects both at the level of criminalisation and at the level of enforcement. The literature abounds in works that study the phenomenon. There is, however, an aspect that has remained largely unexplored. It concerns the relationship between the regulatory framework within which the crime occurs and the procedural safeguards that defendants normally enjoy at trial or at the pre-trial stage: defendants tried for regulatory offences are often denied safeguards that are generally considered (...)
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  28. added 2016-06-02
    Bill Wringe (forthcoming). Rethinking Expressive Theories of Punishment: Why Denunciation is A Better Bet Than Communication or Pure Expression. Philosophical Studies:1-28.
    Many philosophers hold that punishment has an expressive dimension.1 Some, but not all of them have argued that the expressive dimension of punishment is relevant to explaining how punishment can be justified, either in general, or in the particular context of a liberal state. Advocates of expressive theories have different views about what makes punishment expressive, what kinds of mental states and what kinds of claims are, or legitimately can be expressed in punishment, and to what kind of audience or (...)
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  29. added 2016-05-31
    Norbert Paulo (2016). The Confluence of Philosophy and Law in Applied Ethics. Palgrave.
    The law serves functions that are not often taken seriously enough by ethicists, namely feasibility and practicability. A consequence of feasibility is that most laws do not meet the demands of ideal ethical theory. A consequence of practicability is that law requires elaborated and explicit methodologies that determine how to do things with norms. These two consequences form the core idea behind this book, which employs methods from legal theory to inform and examine debates on methodology in applied ethics, particularly (...)
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  30. added 2016-05-28
    Victor Tadros (forthcoming). Doing Without Desert. Criminal Law and Philosophy:1-12.
    This paper examines Derk Pereboom’s argument against punishment on deterrent grounds in his recent book Free Will, Agency, and Meaning in Life. It suggests that Pereboom’s argument against basic desert has not been shown to extend to the view that those who act wrongly lose rights against punishment for deterrent reasons. It further supports the view that those who act wrongly, if they fulfil compatibilist conditions of responsibility, do lose rights to avert threats they pose. And this, it is argued, (...)
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  31. added 2016-05-27
    Nicolas Cornell (2015). A Third Theory of Paternalism. Michigan Law Review 113:1295-1336.
  32. added 2016-05-27
    Piechowiak (2014). Metaaksiologiczna legitymizacja procedur a Konstytucja RP [Mataaxiological Legitimisations of Procedures and the Polish Constitution]. In Małgorzata Masternak-Kubiak, Anna Młynarska-Sobaczewska & Artur Preisner (eds.), Prawowitość władzy państwowej. Beta-Druk 129-146.
    W niniejszym opracowaniu zmierzać będę do uzasadnienia tezy, że przyj­ mowane procedury prawotwórcze i interpretacyjne nie tylko, co oczywiste, są legitymizowane wartościami typu formalnego, i co więcej, nie tylko war­ tościami typu materialnego, których realizacji służyć ma system prawny, ale także fundamentalnymi rozstrzygnięciami metaaksjologicznymi, dotyczącymi tego, jak istnieją i jak mogą być poznawane wartości. Zmierzając do realizacji tego celu uwyraźnię problematykę metaaksjologiczną w kontekście zagadnie­nia legitymizacji, formułując zasadnicze dylematy, które sprowadzają się do wyboru między koncepcją czystych wartości a koncepcją wartości (...)
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  33. added 2016-05-26
    Amandine Catala (2015). Secession and Annexation: The Case of Crimea. German Law Journal 16 (3):581-607.
    The recent crisis involving the territory of Crimea has been characterized both as a case of wrongful annexation and as one of rightful secession. Territory and competing territorial claims lie at the heart of the normative questions of secession and annexation. Any normative theory of secession or of annexation must therefore address their territorial aspect: It must explain why one agent rather than another has a valid claim to the disputed territory. One of the most interesting, yet controversial, normative accounts (...)
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  34. added 2016-05-24
    Chiara Lepora & Robert E. Goodin (forthcoming). On Complicity and Compromise: A Reply to Peter French and Steven Ratner. Criminal Law and Philosophy:1-12.
    Peter French’s and Steven Ratner’s thoughtful comments are helpful in advancing the analysis we offered in our book On Complicity and Compromise. Inevitably, there are areas of disagreement and bones to pick. However, our primary concern in this reply will be to press, with their assistance, the more positive agenda.
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  35. added 2016-05-23
    Michael Da Silva (2016). The Role of Defenders’ Beliefs in Aggressors’ Forfeiture of Rights Against Self‐Defensive Force. Ratio Juris 29 (2):264-279.
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  36. added 2016-05-23
    Frederick Schauer (2016). A Reply to Five Friends. Ratio Juris 29 (2).
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  37. added 2016-05-23
    Peng‐Hsiang Wang (2016). On Alexy's Argument From Inclusion. Ratio Juris 29 (2):288-305.
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  38. added 2016-05-23
    Philippe Gérard (2016). On Some Presuppositions of Judgments of Legal Validity. Ratio Juris 29 (2):280-287.
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  39. added 2016-05-23
    Damiano Canale & Giovanni Tuzet (2016). Introduction to Schauer and The Force of Law. Ratio Juris 29 (2):160-163.
    The paper introduces the debate, hosted by the present Journal, on Schauer's book The Force of Law. It points out some starting points of the discussion and puts into question the status of contemporary jurisprudence.
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  40. added 2016-05-23
    Eoin Daly (2016). Principle, Discretion, and Symbolic Power in Rousseau's Account of Judicial Virtue. Ratio Juris 29 (2):223-245.
    Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy—and correspondingly, (...)
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  41. added 2016-05-23
    Leslie Green (2016). The Forces of Law: Duty, Coercion, and Power. Ratio Juris 29 (2):164-181.
    This paper addresses the relationship between law and coercive force. It defends, against Frederick Schauer's contrary claims, the following propositions: The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. Even if coercion is not part of the concept of law, coercion is connected to law many important ways, and these are amply recognized in contemporary analytic jurisprudence. We cannot determine how (...)
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  42. added 2016-05-23
    José Juan Moreso (2016). Schauer on Coercion, Acceptance, and Schizophrenia. Ratio Juris 29 (2):215-222.
    This article provides a comment on The Force of Law, which is Schauer's new and illuminating contribution to the place of law in our societies and in our lives. It constitutes a strong defence of the importance of coercion in law. First, I consider cases where the law is not able to motivate human behaviour adequately, in order to show that legal coercion is not always justified. Second, I examine the Rawlsian distinction between the ideal and the nonideal theory and (...)
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  43. added 2016-05-23
    Patrick Lenta (2016). Freedom of Conscience and the Value of Personal Integrity. Ratio Juris 29 (2):246-263.
    Certain philosophers have argued in favour of recognising a right to freedom of conscience that includes a defeasible right of individuals to live in accordance with their perceived moral duties. This right requires the government to exempt people from general laws or regulations that prevent them from acting consistently with their perceived moral duties. The importance of protecting individuals’ integrity is sometimes invoked in favour of accommodating conscience. I argue that personal integrity is valuable since autonomy, identity and self-respect are (...)
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  44. added 2016-05-23
    Ralf Poscher (2016). The Ultimate Force of the Law: On the Essence and Precariousness of the Monopoly on Legitimate Force. Ratio Juris 29 (2).
    In his new book, Fred Schauer adopts a prototypical approach to the law in order to reestablish the importance of “The Force of Law” and I strongly support his claim that there are interesting things to be said about the relationship between law and force. One aspect concerns the special kind of force to which the law is related. In the tradition of political philosophy, this kind of force has often been characterized with the state's monopoly on legitimate force. Whereas (...)
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  45. added 2016-05-23
    Torben Spaak (2016). Schauer's Anti‐Essentialism. Ratio Juris 29 (2):182-214.
    In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.
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  46. added 2016-05-23
    David Dyzenhaus (2016). The Ambiguity of Force. Ratio Juris 29 (2):n/a-n/a.
    The author argues that Schauer's understanding of appropriate empiricism and relatedly what he wishes to take from the positivist classics might have an even more reductive impact on legal philosophical inquiry than the legal positivist quest to confine such inquiry to a search for necessary and sufficient conditions. The argument is based on the example of the legal order of the Arab territories occupied by Israel. In the author's view, this legal order is very close to what Schauer regards as (...)
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  47. added 2016-05-23
    Jakob V. H. Holtermann (2015). Getting Real or Staying Positive: Legal Realism, Legal Positivism and the Prospects of Naturalism in Jurisprudence. Ratio Juris 29 (2).
    The relationship between Legal Realism and Legal Positivism has been a recurrent source of debate. The question has been further complicated by the related difficulty of assessing the internal relationship between the two main original strands of Legal Realism: American and Scandinavian. This paper suggests considering American and Scandinavian Realism as instantiations of forward-looking and backward-looking rule skepticism respectively. This distinction brings into sharp relief not only the fundamentally different relationship between each of these two Realist schools and Legal Positivism (...)
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  48. added 2016-05-18
    James A. Macleod (forthcoming). Belief States in Criminal Law. Oklahoma Law Review 68.
    Belief-state ascription — determining what someone “knew,” “believed,” was “aware of,” etc. — is central to many areas of law. In criminal law, the distinction between knowledge and recklessness, and the use of broad jury instructions concerning other belief states, presupposes a common and stable understanding of what those belief-state terms mean. But a wealth of empirical work at the intersection of philosophy and psychology — falling under the banner of “Experimental Epistemology” — reveals how laypeople’s understandings of mens rea (...)
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  49. added 2016-05-15
    Paolo G. Carozza (forthcoming). The Problematic Applicability of Subsidiarity to International Law and Institutions. American Journal of Jurisprudence:auw004.
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  50. added 2016-05-15
    Catherine Kemp (2002). "Law's Intertia: Custom in Logic And Experience". In Austin Sarat Patricia Ewick (ed.), Studies in Law, Politics, and Society, vol. 25. 135-149.
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