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Philosophy of Law

Edited by Aness Webster (Nottingham University)
Assistant editors: Stephen Bero, Renee Bolinger
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  1. added 2016-08-29
    Cameron Boult (forthcoming). Knowledge and Attributability. Pacific Philosophical Quarterly.
    A prominent objection to the so-called ‘knowledge norm of belief’ is that it is too demanding or too strong. The objection is commonly framed in terms of the idea that there is a tight connection between norm violation and the appropriateness of criticism or blame. In this paper I do two things. First, I argue that this way of motivating the objection leads to an impasse in the epistemic norms debate. It leads to an impasse when knowledge normers invoke excuses (...)
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  2. added 2016-08-24
    A. Kalis & G. Meynen (2014). Mental Disorder and Legal Responsibility: The Relevance of Stages of Decision-Making. International Journal of Law and Psychiatry 37 (6):601-8.
  3. added 2016-08-23
    Ryan Long (2016). Ethics, Rights, and White's Antitrust Skepticism. The Antitrust Bulletin 61 (2):336-341.
    Mark White has developed a provocative skepticism about antitrust law. I first argue against three claims that are essential to his argument: the state may legitimately constrain or punish only conduct that violates someone’s rights, the market’s purpose is coordinating and maximizing individual autonomy, and property rights should be completely insulated from democratic deliberation. I then sketch a case that persons might have a right to a competitive market. If so, antitrust law does deal with conduct that violates rights. The (...)
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  4. added 2016-08-22
    Robert Alexy (2016). Scott J Shapiro Between Positivism and Non-Positivism. Jurisprudence 7 (2):299-306.
    In his book Legality Scott J Shapiro presents a large-scale and sophisticated attempt to defend legal positivism in its most outspoken form, namely exclusive legal positivism. This, however, does not mean that morality plays no role in Shapiro’s analysis of the nature of law. On the contrary, he connects law with morality in myriad ways. This gives rise to the question of whether Shapiro’s theory of the nature of law is truly positivistic. In the article I argue that Shapiro’s theory (...)
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  5. added 2016-08-19
    Tarik Kochi (forthcoming). Conflicting Lineages of International Law: Cicero, Hugo Grotius and Adam Smith on Global Property Relations. Jurisprudence:1-30.
    This essay presents an interpretation of the juridical thought of Cicero, Hugo Grotius and Adam Smith. Focussing upon questions of property, capital accumulation and violence, the essay traces a tension within their writings between a social ethic of human fellowship and compassion, and, a theory of the utility of ‘unsocial’ commercial self-interest. This tension forms a key problem for the tradition of liberal international law. For Grotius and Smith one response to this tension is to attempt to reign in capitalist (...)
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  6. added 2016-08-19
    George Pavlakos (2016). Introduction. Jurisprudence 7 (2):297-298.
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  7. added 2016-08-19
    Stefano Bertea (2016). Coherentism and Foundationalism in the Practical Domain. Jurisprudence 7 (2):365-375.
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  8. added 2016-08-19
    Mark Tushnet (2016). Public Rights, Private Relations. Jurisprudence 7 (2):355-364.
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  9. added 2016-08-19
    Thomas Mertens (2016). How to Address Kant’s Legal and Political Philosophy? A Review of Maliks’s Kantian Context and Horn’s Non-Ideal Normativity. Jurisprudence 7 (2):376-383.
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  10. added 2016-08-19
    Anthony R. Reeves (2016). Reasons of Law: Dworkin on the Legal Decision. Jurisprudence 7 (2):210-230.
    Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (...)
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  11. added 2016-08-19
    A. J. Julius (2016). The Jurisprudence Annual Lecture 2016 – Mutual Recognition. Jurisprudence 7 (2):193-209.
    Each of two mutually recognising persons knows herself to be capable of and responsible for acting toward the other in ways that presuppose the other’s capability and responsibility for doing the same. The lecture brings out some egalitarian, libertarian and solidaristic aspects of an interpersonal ideal of mutual recognition, and it considers conversation, friendship and respect for right as three main examples of the syndrome.
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  12. added 2016-08-19
    Triantafyllos Gkouvas (2016). Planning From a Legal Point of View. Jurisprudence 7 (2):341-354.
    Legality is a monograph scoring distinct contributions across the board of jurisprudential discourse. Among the most prominent arguments marshalled in this book is an impressively robust defence of reductionism about legal norms. The concept of a plan is invoked in the service of delivering a formidable task, that of disembarrassing the legal philosopher of the quest for what makes legal norms metaphysically distinct. The answer is simple, yet relies on an intricate chain of arguments: talk of legal norms is just (...)
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  13. added 2016-08-19
    Panu Minkkinen (2016). A-Legal Irruptions and Spatial Revolutions. Jurisprudence 7 (2):401-408.
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  14. added 2016-08-19
    Connie S. Rosati (2016). Normativity and the Planning Theory of Law. Jurisprudence 7 (2):307-324.
    In this essay, I focus on what appear to be Shapiro’s views about the normativity of law, as well as with his surprising claim that law necessarily has a moral aim. I argue that even if Shapiro offers a more compelling reply to the problem of the normativity of law than Hart offers in The Concept of Law, the moves that he makes appear to be equally available to a defender of Hart’s theory, and so in this respect, the planning (...)
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  15. added 2016-08-19
    Massimo La Torre (2016). On the Legal Logic of Social Ontology: Short Remarks on Hans Lindahl’s Fault Lines of Globalization. Jurisprudence 7 (2):384-391.
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  16. added 2016-08-19
    Emmanuel Melissaris (2016). Legality Bound. Jurisprudence 7 (2):392-400.
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  17. added 2016-08-19
    Scott Veitch (2016). A Comment on Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality. Jurisprudence 7 (2):409-418.
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  18. added 2016-08-19
    Hans Lindahl (2016). Reply to Critics. Jurisprudence 7 (2):419-429.
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  19. added 2016-08-18
    Ken Levy (forthcoming). Review of Bebhinn Donnelly-Lazarov's Philosophy of Criminal Attempts: The Subjective Approach. [REVIEW] Jurisprudence.
    Issues include attempts generally; the problem of outcome luck; the impossibility defense; physical movement and intent; and reckless attempts, attempted rape, and attempted theft. In the final section, I offer a hypothetical that challenges Prof. Donnelly-Lazarov's theory.
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  20. added 2016-08-16
    Robert Lepenies & Magdalena Malecka (2016). Nudges, Recht und Politik: Institutionelle Implikationen. Zeitschrift Für Praktische Philosophie 3 (1): 487–530.
    In diesem Beitrag argumentieren wir, dass eine umfassende Implementierung sogenannter Nudges weitreichende Auswirkungen für rechtliche und politische Institutionen hat. Die wissenschaftliche Diskussion zu Nudges ist derzeit hauptsächlich von philosophischen Theorien geprägt, die im Kern einen individualistischen Ansatz vertreten. Unsere Analyse bezieht sich auf die Art und Weise, in der sich Anhänger des Nudging neuster Erkenntnisse aus den Verhaltenswissenschaften bedienen – immer in der Absicht, diese für effektives Regieren einzusetzen. Wir unterstreichen, dass die meisten Nudges, die derzeit entweder diskutiert werden oder (...)
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  21. added 2016-08-14
    Tarik Kochi (2016). Conflicting Lineages of International Law: Cicero, Hugo Grotius and Adam Smith on Global Property Relations. Jurisprudence:1-30.
    This essay presents an interpretation of the juridical thought of Cicero, Hugo Grotius and Adam Smith. Focussing upon questions of property, capital accumulation and violence, the essay traces a tension within their writings between a social ethic of human fellowship and compassion, and, a theory of the utility of ‘unsocial’ commercial self-interest. This tension forms a key problem for the tradition of liberal international law. For Grotius and Smith one response to this tension is to attempt to reign in capitalist (...)
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  22. added 2016-08-12
    Wibren van der Burg (forthcoming). Law as a Second-Order Essentially Contested Concept. Jurisprudence:1-27.
    Since Gallie introduced the notion of essentially contested concepts, it has given rise to considerable debate and confusion. The aim of this paper is to bring clarity to these debates by offering a critical reconstruction of the notion of essential contestedness. I argue that we should understand essentially contestable concepts as concepts that refer to ideals or to concepts and phenomena that can only be fully understood in light of ideals and that are, as a consequence, open to pervasive contestation. (...)
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  23. added 2016-08-11
    Robert Mark Simpson (2016). Defining 'Speech': Subtraction, Addition, and Division. Canadian Journal of Law and Jurisprudence 29 (2):457-494.
    In free speech theory ‘speech’ has to be defined as a special term of art. I argue that much free speech discourse comes with a tacit commitment to a ‘Subtractive Approach’ to defining speech. As an initial default, all communicative acts are assumed to qualify as speech, before exceptions are made to ‘subtract’ those acts that don’t warrant the special legal protections owed to ‘speech’. I examine how different versions of the Subtractive Approach operate, and criticise them in terms of (...)
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  24. added 2016-08-10
    Ben Bryan (forthcoming). Rights Forfeiture Theorists Should Embrace the Duty View of Punishment. Australasian Journal of Philosophy:1-11.
    In this paper, I bring into conversation with each other two views about the justification of punishment: the rights forfeiture theory and the duty view. I argue that philosophers attracted to the former should instead accept the latter.
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  25. added 2016-08-10
    Andrew Stumpff Morrison (2016). Law Is the Command of the Sovereign: H. L. A. Hart Reconsidered. Ratio Juris 29 (3):364-384.
    This article presents a critical reevaluation of the thesis—closely associated with H. L. A. Hart, and central to the views of most recent legal philosophers—that the idea of state coercion is not logically essential to the definition of law. The author argues that even laws governing contracts must ultimately be understood as “commands of the sovereign, backed by force.” This follows in part from recognition that the “sovereign,” defined rigorously, at the highest level of abstraction, is that person or entity (...)
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  26. added 2016-08-10
    Paul Guyer (2016). Kant's Politics of Freedom. Ratio Juris 29 (3):427-432.
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  27. added 2016-08-10
    Mark Tunick (2016). Should We Aim for a Unified and Coherent Theory of Punishment? Criminal Law and Philosophy 10 (3):611-628.
    Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set (...)
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  28. added 2016-08-10
    Luka Burazin (2016). Can There Be an Artifact Theory of Law? Ratio Juris 29 (3):385-401.
    The idea that particular legal institutions are artifacts is not new. However, the idea that the “law” or “legal system” is itself an artifact has seldom been directly put forward, due perhaps to the ambiguities surrounding philosophical inquiries into law. Nevertheless, such an idea has recently been invoked more often, though not always developed in detail in terms of what the characterization of the “law” or “legal system” as an artifact entails ontologically, and what consequences, if any, this has for (...)
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  29. added 2016-08-10
    Christopher Bennett (2016). Penal Disenfranchisement. Criminal Law and Philosophy 10 (3):411-425.
    This paper considers the justifiability of removing the right to vote from those convicted of crimes. Firstly, I consider the claim that the removal of the right to vote from prisoners is necessary as a practical matter to protect the democratic process from those who have shown themselves to be untrustworthy. Secondly, I look at the claim that offenders have broken the social contract and forfeited rights to participate in making law. And thirdly, I look at the claim that the (...)
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  30. added 2016-08-10
    Riccardo Guastini (2016). Kelsen on Validity. Ratio Juris 29 (3):402-409.
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  31. added 2016-08-09
    François Boucher & Cécile Laborde (2016). Why Tolerate Conscience? Criminal Law and Philosophy 10 (3):493-514.
    In Why Tolerate Religion?, Brian Leiter argues against the special legal status of religion, claiming that religion should not be the only ground for exemptions to the law and that this form of protection should be, in principle, available for the claims of secular conscience as well. However, in the last chapter of his book, he objects to a universal regime of exemptions for both religious and secular claims of conscience, highlighting the practical and moral flaws associated with it. We (...)
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  32. added 2016-08-06
    Andrew Molas (2016). “Defending the CRPD: Dignity, Flourishing, and the Universal Right to Mental Health.”. International Journal of Human Rights:1-13.
    I argue that the right to mental health should be viewed as a universal human right and that the United Nations Convention on the Rights of Persons with Disabilities (CRPD), as an international standard, protects it because it places a positive duty on states to actively promote the mental well-being of its citizens for the purpose of preserving their dignity and allowing them to flourish. I begin by discussing the discrimination that persons with psychiatric disabilities experience, including the systemic barriers (...)
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  33. added 2016-08-02
    Jaakko Husa (forthcoming). Translating Legal Language and Comparative Law. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-12.
    Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator (...)
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  34. added 2016-08-01
    Matt King (forthcoming). Against Personifying the Reasonable Person. Criminal Law and Philosophy:1-8.
    One way in which fact finders are supposed to determine the reasonableness of a defendant is via a counterfactual test that personifies the reasonable person. We are to imagine the reasonable person being in the defendant’s circumstances. Then we are to determine whether the reasonable person would have done as the defendant did. This paper argues that, despite its prevalence, the counterfactual test is a hopeless guide to determining defendant reasonability. In brief, the test is of the wrong sort to (...)
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  35. added 2016-07-28
    Vito Breda (forthcoming). The Grammar of Bias: Judicial Impartiality in European Legal Systems. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-16.
    The concept of judicial objectivity is a cornerstone of modern legal systems. This article discusses the interplay between the lexical uses of the concept of judicial objectivity in cases that review the judicial impartiality of the court. The data for this project is retrieved from a large sample of cases from Hungary, Italy, Lithuania, Slovakia, Slovenia, Spain and the UK. The analysis of the data shows that in the case of alleged judicial bias, the concept of objectivity is referred to (...)
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  36. added 2016-07-28
    Alon Harel (forthcoming). Defending WhyLawMatters: Responses to Commentaries. Criminal Law and Philosophy:1-13.
    WhyLawMatters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter assuch.
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  37. added 2016-07-21
    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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  38. 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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  39. 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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  40. 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.
  41. added 2016-07-16
    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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  42. added 2016-07-16
    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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  43. 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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  44. 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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  45. 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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  46. added 2016-07-09
    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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  47. 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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  48. added 2016-07-06
    Akira Inoue (2016). Can Luck Egalitarianism Serve as a Basis for Distributive Justice? A Critique of Kok-Chor Tan’s Institutional Luck Egalitarianism. Law and Philosophy 35 (4):391-414.
    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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  49. 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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  50. 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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