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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 2016-09-30
    Paul Gragl (forthcoming). In Defence of Kelsenian Monism: Countering Hart and Raz. Jurisprudence:1-32.
    This paper discusses the main criticism launched against legal monism and the Pure Theory of Law, as envisaged by Hans Kelsen and the other proponents of the Vienna School of Jurisprudence, namely the criticism voiced by two of the most eminent legal theorists, HLA Hart and Joseph Raz. According to them, legal monism fails to offer a satisfactory theory of the identity of legal systems and it therefore simply cannot be considered a viable theory of legal systems, because it leads (...)
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  2. added 2016-09-26
    Bill Wringe (forthcoming). Punishment Forgiveness and Reconciliation. Philosophia.
    It is sometimes thought that the normative justification for responding to large-scale violations of human rights via the judicial appararatus of trial and punishment is undermined by the desirability of reconciliation between conflicting parties as part of the process of conflict resolution. I take there to be philosophical, as well as practical and psychological issues involved here: on some conceptions of punishment and reconciliation, the attitudes that they involve conflict with one another on rational grounds. But I shall argue that (...)
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  3. added 2016-09-24
    Larry Alexander, Heidi Hurd & Peter Westen (forthcoming). Consent Does Not Require Communication: A Reply to Dougherty. Law and Philosophy:1-6.
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  4. added 2016-09-22
    Giovanni Cogliandro (2015). Le Corti, il Legislatore e la Ragione Pubblica nella filosofia del diritto di Jeremy Waldron. Rivista Internazionale di Filosofia Del Diritto 4:651-688.
    1. Indeterminatezza costituiva della ragione pubblica e governo della legge; 2. Concetto e rule of law; 3. Concetto, linguaggio e obbedienza; 4. Chain novel e struttura normativa; 5. Contrastanti armonie.
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  5. added 2016-09-22
    Giovanni Cogliandro (2015). Le Corti, il Legislatore e la Ragione Pubblica nella filosofia del diritto di Jeremy Waldron. Rivista Internazionale di Filosofia Del Diritto 4:651-688.
    1. Indeterminatezza costituiva della ragione pubblica e governo della legge; 2. Concetto e rule of law; 3. Concetto, linguaggio e obbedienza; 4. Chain novel e struttura normativa; 5. Contrastanti armonie.
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  6. added 2016-09-20
    Daniel Bansal (forthcoming). Nicola Lacey: In Search of Criminal Responsibility: Ideas, Interests, and Institutions. Criminal Law and Philosophy:1-5.
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  7. added 2016-09-20
    George Duke (forthcoming). The Weak Natural Law Thesis and the Common Good. Law and Philosophy:1-25.
    The weak natural law thesis asserts that any instance of law is either a rational standard for conduct or defective. At first glance, the thesis seems compatible with the proposition that the validity of a law within a legal system depends upon its sources rather than its merits. Mark C. Murphy has nonetheless argued that the weak natural law thesis can challenge this core commitment of legal positivism via an appeal to law’s function and defectiveness conditions. My contention in the (...)
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  8. added 2016-09-19
    David Wiens (forthcoming). Leif Wenar, Blood Oil. [REVIEW] Ethics.
  9. added 2016-09-16
    Thomas Giddens (forthcoming). Anderson V Dredd [2137] Mega-City LR 1. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-17.
    Administrative—judgment on the nature of judgment—conflict between Judges in judicial practice—claimant challenges the judicial capacity of respondent —claimant open and fluid in judicial style—respondent certain and authoritative in judicial style—insights from Psi Division on the role of judgment in the universe—whether respondent is a good judge—whether judgment closes down meaning—whether respondent is inhuman—whether judges are inhuman—whether judging is horrific—insight from twentieth century fiction on the place of humans in the universe—horror of HP Lovecraft—suppression of horrific cosmic context within judicial institution—suppression (...)
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  10. added 2016-09-15
    Sophia Moreau (forthcoming). Discrimination Law and the Freedom to Live a Good Life. Law and Philosophy:1-17.
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  11. added 2016-09-13
    Rina Villars (forthcoming). Same-Sex Marriage and the Spanish Constitution: The Linguistic-Legal Meaning Interface. International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-28.
    This paper analyzes the implications that the linguistic formulation of the marriage provision of the Spanish Constitution of 1978 had for securing the passage in 2005 of Law 13/2005, which legalized same-sex marriage. By claiming that a semantic omission in the original legal text was a marker of distributiveness, SSM supporters aimed to avoid a constitutional amendment, and succeeded in doing so. This linguistic argument, based on implicitness, was instrumental as a subsidiary argument of political moral argumentation. Linguistic meaning therefore (...)
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  12. added 2016-09-12
    Vojko Strahovnik (2016). Defeasibility, Norms and Exceptions: Normalcy Model. Revus (29).
    The paper discusses the notion of defeasibility and focuses specifically on defeasible norms. First, it delineates a robust notion of the phenomenon of defeasibility, which poses a serious problem for both moral and legal theory. It does this by laying out the conditions and desiderata that a model of defeasibility should be able to meet. It further focuses on a specific model of defeasibility that utilises the notion of normal conditions to expound the robust notion of defeasibility. It argues that (...)
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  13. added 2016-09-11
    Kimberly Kessler Ferzan & Peter Westen (forthcoming). How to Think About Rape. Criminal Law and Philosophy:1-42.
    From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two (...)
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  14. added 2016-09-11
    David Golemboski (forthcoming). Judicial Evaluation of Religious Belief and the Accessibility Requirement in Public Reason. Law and Philosophy:1-26.
    Many theories of liberal public reason exclude claims derived from religion on grounds that religious beliefs are not publicly ‘accessible’, because they are not amenable to meaningful evaluation by outsiders to the faith. Some authors, though, have argued that at least some religious beliefs are, in fact, publicly accessible. This paper examines the consequences of these arguments by exploring the accessibility requirement in relation to U.S. judicial precedent concerning religious accommodation. I first show that precedent accords de facto with the (...)
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  15. added 2016-09-10
    John Lemos (forthcoming). Moral Concerns About Responsibility Denial and the Quarantine of Violent Criminals. Law and Philosophy:1-23.
    Some contemporary philosophers maintain we lack the kind of free will that makes us morally responsible for our actions. Some of these philosophers, such as Derk Pereboom, Gregg Caruso, and Bruce Waller, also argue that such a view supports the case for significant reform of the penal system. Pereboom and Caruso explicitly endorse a quarantine model for dealing with dangerous criminals, arguing that while not responsible for their crimes such criminals should be detained in non-harsh conditions and offered the opportunity (...)
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  16. added 2016-09-08
    Jennifer Hendry & Colin King (forthcoming). Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids. Criminal Law and Philosophy:1-25.
    In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural (...)
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  17. added 2016-09-06
    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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  18. added 2016-08-30
    Matthew Crippen (2016). Egypt and the Middle East: Democracy, Anti-Democracy and Pragmatic Faith. Saint Louis University Public Law Review 35:281-302.
    In this article, I discuss prospects for democracy in the Middle East. I argue, first, that some democratic experiments—for instance, Egypt under Mohammed Morsi—are not in keeping with etymological and historical meanings of democracy; and second, that efforts to promote democracy, especially as exemplified in U.N. documents emphasizing universal rights grounded in Western traditions, are possibly totalitarian and also colonialist and hence counter to democratic ideals insofar as they impart one set of values as the only morally acceptable ones. A (...)
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  19. 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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  20. 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.
  21. 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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  22. 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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  23. 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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  24. added 2016-08-19
    Hans Lindahl (2016). Reply to Critics. Jurisprudence 7 (2):419-429.
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  25. added 2016-08-19
    Mark Tushnet (2016). Public Rights, Private Relations. Jurisprudence 7 (2):355-364.
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  26. 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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  27. 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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  28. 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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  29. 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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  30. added 2016-08-19
    George Pavlakos (2016). Introduction. Jurisprudence 7 (2):297-298.
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  31. added 2016-08-19
    Panu Minkkinen (2016). A-Legal Irruptions and Spatial Revolutions. Jurisprudence 7 (2):401-408.
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  32. added 2016-08-19
    Emmanuel Melissaris (2016). Legality Bound. Jurisprudence 7 (2):392-400.
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  33. added 2016-08-19
    Stefano Bertea (2016). Coherentism and Foundationalism in the Practical Domain. Jurisprudence 7 (2):365-375.
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  34. 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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  35. 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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  36. 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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  37. 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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  38. 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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  39. 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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  40. 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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  41. 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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  42. added 2016-08-10
    Riccardo Guastini (2016). Kelsen on Validity. Ratio Juris 29 (3):402-409.
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  43. 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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  44. 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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  45. added 2016-08-10
    Paul Guyer (2016). Kant's Politics of Freedom. Ratio Juris 29 (3):427-432.
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  46. 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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  47. 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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  48. 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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  49. 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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  50. 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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