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Philosophy of Law

Edited by Aness Webster (University of Southern California, University of Nottingham)
Assistant editors: Stephen Bero, Renee Bolinger
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  1. 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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  2. added 2016-05-27
    Nicolas Cornell (2015). A Third Theory of Paternalism. Michigan Law Review 113:1295-1336.
  3. 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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  4. 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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  5. added 2016-05-24
    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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  6. 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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  7. 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 (...)
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  8. added 2016-05-23
    David Dyzenhaus (2016). The Ambiguity of Force. Ratio Juris 29 (2).
    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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  9. 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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  10. 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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  11. 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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  12. added 2016-05-23
    Frederick Schauer (2016). A Reply to Five Friends. Ratio Juris 29 (2).
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  13. 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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  14. 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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  15. 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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  16. added 2016-05-23
    Peng‐Hsiang Wang (2016). On Alexy's Argument From Inclusion. Ratio Juris 29 (2):288-305.
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  17. 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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  18. 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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  19. 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):n/a-n/a.
    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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  20. 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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  21. 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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  22. 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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  23. added 2016-05-15
    Catherine Kemp (1999). Habermas Among The Americans: Some Reflections On The Common Law. Denver University Law Review 76 (4):1999.
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  24. added 2016-05-15
    Catherine Kemp (1997). The Uses of Abstraction: Remarks on Interdisciplinary Efforts in Law and Philosophy. Denver University Law Review 74 (4):877-888.
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  25. added 2016-05-12
    Daniel Vazquez-Paluch (2016). The Legal Thought of an Early Andalusian Jurist: ʿĪsā B. Dīnār. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 29 (2):425-453.
    By looking at the legal thought of an early Andalusian jurist, this paper argues for the early use of the Muwatta as a source of law and for Malik as the eponym of a rapidly emerging Maliki school.
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  26. added 2016-05-11
    John Danaher (forthcoming). Robots, Law and the Retribution Gap. Ethics and Information Technology.
    We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap arises (...)
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  27. added 2016-05-09
    Ami Harbin (2013). Review of Being Relational: Reflections on Relational Theory and Health Law and Policy (Ed. Jennifer Llewellyn and Jocelyn Downie). [REVIEW] Hypatia: A Journal of Feminist Philosophy:online.
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  28. added 2016-05-07
    Cindy Phillips (forthcoming). The Presumption of Liberty and Coerciveness of Law. Jurisprudence.
    A dominant belief in political philosophy is that states must be entitled to authorize the use of coercion in order to justifiably coerce its subjects (Lamond 2001, Ripstein 2004). Call this view the entitlement view. On this view, for a state to justifiably coerce its subjects, a necessary condition is that it is entitled (or has a right) to authorize the use of coercion. Skeptics hold the entitlement view (Simmons 1979, Wolff 1970). However, they deny that states are entitled to (...)
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  29. added 2016-05-05
    Peter Chau (forthcoming). Bennett’s Expressive Justification of Punishment. Criminal Law and Philosophy:1-19.
    In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to (...)
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  30. added 2016-05-05
    Saul Smilansky (forthcoming). Pereboom on Punishment: Funishment, Innocence, Motivation, and Other Difficulties. Criminal Law and Philosophy:1-13.
    In Free Will, Agency, and Meaning in Life, Derk Pereboom proposes an optimistic model of life that follows on the rejection of both libertarian and compatibilist beliefs in free will, moral responsibility, and desert. I criticize his views, focusing on punishment. Pereboom responds to my earlier argument that hard determinism must seek to revise the practice of punishment in the direction of funishment, whereby the incarcerated are very generously compensated for the deprivations of incarceration. I claimed that funishment is a (...)
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  31. added 2016-05-05
    Shaheeza Lalani (forthcoming). Ascertaining Foreign Law: Problems of Access and Interpretation. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-16.
    This article, which analyses relevant cases that have already been the subject of academic commentary, examines some of the most commonly recurring problems in the proper ascertainment of foreign law. Drawing parallels to translation theories, the article examines best practices for foreign law experts and situational factors that sometimes result in the misapplication of foreign law.
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  32. added 2016-05-02
    Uwe Steinhoff (forthcoming). When May Soldiers Participate in War? International Theory.
    I shall argue that in some wars both sides are (as a collective) justified, that is, they can both satisfy valid jus ad bellum requirements. Moreover, in some wars – but not in all – the individual soldiers on the unjustified side (that is, on the side without jus ad bellum) may nevertheless kill soldiers (and also civilians as a side-effect) on the justified side, even if the enemy soldiers always abide by jus in bello constraints. The reason for this (...)
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  33. added 2016-04-29
    Sally Ramage (2016). GENETICS CRIME AND JUSTICE, EDWARD ELGAR 2015. Current Criminal Law 9 (3):2-29.
    The UK government decided to introduce Income Tax in 1799. Later, tax avoidance schemes involved creation of Deeds of Convenant. It is a fact that crime is increasing but the number of people committing crime is not increasing because many crimes are repeated crimes committed by persons with habitual criminal behaviour, ie hard-core criminals. -/- For more than half a century now, there has been scientific evidence that <span class='Hi'>genetics</span> plays a key role in the origins of criminal (...)
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  34. added 2016-04-28
    Chloë Kennedy (forthcoming). Lindsay Farmer: Making the Modern Criminal Law: Criminalization and Civil Order. Criminal Law and Philosophy:1-8.
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  35. added 2016-04-28
    Katrina Sifferd (forthcoming). Book Review: Wringe, Bill. An Expressive Theory of Punishment. Ethics.
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  36. added 2016-04-27
    Matthew Talbert (2016). Symmetry, Rational Abilities, and the Ought-Implies-Can Principle. Criminal Law and Philosophy 10 (2):283-296.
    In Making Sense of Free Will and Moral Responsibility Dana Nelkin defends the “rational abilities view.” According to this view, agents are responsible for their behavior if and only if they act with the ability to recognize and act for good reasons. It follows that agents who act well are open to praise regardless of whether they could have acted differently, but agents who act badly are open to blame only if they could have acted on the moral reasons that (...)
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  37. added 2016-04-27
    Manuel R. Vargas (2016). Responsibility and the Limits of Conversation. Criminal Law and Philosophy 10 (2):221-240.
    Both legal and moral theorists have offered broadly “communicative” theories of criminal and moral responsibility. According to such accounts, we can understand the nature of responsibility by appealing to the idea that responsibility practices are in some fundamental sense expressive, discursive, or communicative. In this essay, I consider a variety of issues in connections with this family of views, including its relationship to free will, the theory of exemptions, and potential alternatives to the communicative model. Focusing on Michael McKenna’s Conversation (...)
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  38. added 2016-04-27
    Thaddeus Metz (2012). Animal Rights and the Interpretation of the South African Constitution. In David Bilchitz & Stu Woolman (eds.), Is This Seat Taken? Conversations at the Bar, the Bench and the Academy. Pretoria University Law Press 209-219.
    In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon (...)
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  39. added 2016-04-26
    Tony Ward (2016). Expert Testimony, Law and Epistemic Authority. Journal of Applied Philosophy 33 (2):n/a-n/a.
    This article discusses the concept of epistemic authority in the context of English law relating to expert testimony. It distinguishes between two conceptions of epistemic authority, one strong and one weak, and argues that only the weak conception is appropriate in a legal context, or in any other setting where reliance on experts can be publicly justified. It critically examines Linda Zagzebski's defence of a stronger conception of epistemic authority and questions whether epistemic authority is as closely analogous (...)
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  40. added 2016-04-24
    Andrew Ingram (2014). Breaking Laws to Fix Broken Windows: A Revisionist Take on Order Maintenance Policing. Berkeley Journal of Criminal Law 19 (2):112-152.
    Today, there is a family of celebrated police strategies that teach the importance of cracking down on petty crime and urban nuisance as the key to effective crime control. Under the “broken windows” appellation, this strategy is linked in the public mind with New York City and the alleged successes of its police department in reducing the rate of crime over the past two decades. This paper is critical of such order maintenance approaches to policing: I argue that infringements of (...)
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  41. added 2016-04-24
    Andrew Ingram (2013). A (Moral) Prisoner's Dilemma: Character Ethics and Plea Bargaining. Ohio State Journal of Criminal Law 11 (1):161-177.
    Plea bargains are the stock-in-trade of the modern American prosecutor’s office. The basic scenario, wherein a defendant agrees to plea guilty in exchange for a reduced sentence, is familiar to viewers of police procedurals. In an equally famous variation on the theme, the prosecutor requests something more than an admission of guilt: leniency will only be forthcoming if the defendant is willing to cooperate with the prosecutor in securing the conviction of another suspect. In some of these cases, the defendant (...)
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  42. added 2016-04-24
    Andrew Ingram (2012). Parsing the Reasonable Person: The Case of Self-Defense. American Journal of Criminal Law 39 (3):101-120.
    Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this paper aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them. -/- Ordinarily, we can distinguish between a person's (...)
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  43. added 2016-04-21
    Siobhan Weare (forthcoming). Bad, Mad or Sad? Legal Language, Narratives, and Identity Constructions of Women Who Kill Their Children in England and Wales. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-22.
    In this article I explore the ways in which legal language, discourses, and narratives construct new dominant identities for women who kill their children. These identities are those of the ‘bad’, ‘mad’, or ‘sad’ woman. Drawing upon and critiquing statutes, case law, and sentencing remarks from England and Wales, I explore how singular narrative identities emerge for the female defendants concerned. Using examples from selected cases, I highlight how the judiciary interpret legislation, use evidence, and draw upon gender stereotypes (...)
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  44. added 2016-04-21
    Michael Blake (forthcoming). Agency, Coercion, and Global Justice: A Reply to My Critics. Law and Philosophy:1-23.
    Mathias Risse, Andrea Sangiovanni, and Kok-Chor Tan have offered some subtle and powerful criticisms of the ideas given in my Justice and Foreign Policy. Three themes in particular recur in their critiques. The first is that the arguments I make in that book rest upon unjustified, arbitrary, or contradictory premises. The second is that the use of coercion in the analysis of distributive justice is a mistake. The third is that the global institutional set represents, contrary to my arguments, an (...)
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  45. added 2016-04-20
    Carlos Miguel Herrera (forthcoming). Culture Juridique Et Politique: Une Introduction. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-7.
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  46. added 2016-04-19
    Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang & Katharina Pistor (forthcoming). Legal Institutionalism: Capitalism and the Constitutive Role of Law. Journal of Comparative Economics.
    Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...)
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  47. added 2016-04-19
    Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang & Katharina Pistor (forthcoming). Legal Institutionalism: Capitalism and the Constitutive Role of Law. Journal of Comparative Economics.
    Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between (...)
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  48. added 2016-04-17
    Natalia P. Koptseva, Vladimir S. Luzan, Veronica A. Razumovskaya & Vladimir I. Kirko (forthcoming). The Content Analysis of the Russian Federal and Regional Basic Legislation on the Cultural Policy. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-28.
    The content-analysis of the Russian federal and regional basic legislation on the cultural policy has indicated a need in a deep revision of all existing regulatory legal acts, which support the state cultural policy implementation towards building a universal terminology and vesting the functions on the cultural policy implementation in the government as opposed to the statement of the departmental specific approach to the culture.
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  49. added 2016-04-17
    Ken Levy (2017). Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism. Lewis and Clark Law Review 21 (1).
    My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...)
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  50. added 2016-04-13
    Janny H. C. Leung (forthcoming). Recent Publications. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-3.
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