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Philosophy of Law

Edited by Aness Webster (University of Southern California, University of Nottingham)
Assistant editors: Renee Bolinger, Stephen Bero
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  1. added 2016-06-29
    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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  2. added 2016-06-29
    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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  3. added 2016-06-21
    Eirik Lang Harris (forthcoming). The Shenzi Fragments: A Philosophical Analysis and Translation. Columbia University Press.
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  4. added 2016-06-21
    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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  5. added 2016-06-18
    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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  6. added 2016-06-16
    Christopher Heath Wellman (forthcoming). Introduction: Symposium on Justice & Foreign Policy. Law and Philosophy:1-2.
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  7. 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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  8. added 2016-06-14
    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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  9. added 2016-06-14
    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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  10. 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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  11. added 2016-06-08
    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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  12. 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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  13. 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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  14. added 2016-05-29
    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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  15. added 2016-05-27
    Nicolas Cornell (2015). A Third Theory of Paternalism. Michigan Law Review 113:1295-1336.
  16. 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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  17. 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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  18. added 2016-05-25
    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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  19. 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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  20. 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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  21. 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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  22. 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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  23. 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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  24. 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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  25. 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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  26. 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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  27. 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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  28. added 2016-05-23
    Frederick Schauer (2016). A Reply to Five Friends. Ratio Juris 29 (2):n/a-n/a.
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  29. 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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  30. added 2016-05-23
    Peng‐Hsiang Wang (2016). On Alexy's Argument From Inclusion. Ratio Juris 29 (2):288-305.
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  31. 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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  32. 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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  33. 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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  34. 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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  35. 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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  36. 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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  37. 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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  38. 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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  39. 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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  40. 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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  41. added 2016-05-06
    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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  42. added 2016-05-06
    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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  43. added 2016-05-06
    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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  44. added 2016-05-03
    Uwe Steinhoff (2016). When May Soldiers Participate in War? International Theory 8 (2):262-296.
    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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  45. added 2016-04-29
    Chloë Kennedy (forthcoming). Lindsay Farmer: Making the Modern Criminal Law: Criminalization and Civil Order. Criminal Law and Philosophy:1-8.
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  46. 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 genetics plays a key role in the origins of criminal behaviour. There are (...)
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  47. added 2016-04-28
    Katrina Sifferd (forthcoming). Book Review: Wringe, Bill. An Expressive Theory of Punishment. Ethics.
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  48. added 2016-04-28
    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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  49. added 2016-04-28
    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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  50. 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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