Law and Philosophy 31 (2):213-241 (2012)
|Abstract||In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy|
|Keywords||No keywords specified (fix it)|
|Through your library||Configure|
Similar books and articles
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Alex Broadbent (2009). Fact and Law in the Causal Inquiry. Legal Theory 15:173-191.
John Arthur & William H. Shaw (eds.) (2010). Readings in the Philosophy of Law. Pearson Prentice Hall.
Michael P. Levine (1986). The Role of Reason in the Ethics of Maimonides: Or, Why Maimonides Could Have Had a Doctrine of Natural Law Even If He Did Not. Journal of Religious Ethics 14 (2):279 - 295.
Robin Kundis Craig, A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust.
Stephen Shute & A. P. Simester (eds.) (2002). Criminal Law Theory: Doctrines of the General Part. Oxford University Press.
Oscar James Brown (1981). Natural Rectitude and Divine Law in Aquinas: An Approach to an Integral Interpretation of the Thomistic Doctrine of Law. Pontifical Institute of Mediaeval Studies.
Larry May & Zachary Hoskins (eds.) (2010). International Criminal Law and Philosophy. Cambridge University Press.
Larry Alexander (2009). Facts, Law, Exculpation, and Inculpation: Comments on Simons. Criminal Law and Philosophy 3 (3):241-245.
Malcolm Thorburn (2011). The Constitution of Criminal Law: Justifications, Policing and the Stateâ€™s Fiduciary Duties. Criminal Law and Philosophy 5 (3):259-276.
S. J. (2000). Trial by Slogan: Natural Law and Lex Iniusta Non Est Lex. Law and Philosophy 19 (4):433-449.
Paula Gaido (2011). The Purpose of Legal Theory: Some Problems with Joseph Raz's View. Law and Philosophy 30 (6):685-698.
Added to index2011-09-08
Total downloads25 ( #50,364 of 556,772 )
Recent downloads (6 months)3 ( #27,178 of 556,772 )
How can I increase my downloads?