13 found

Year:

  1.  2
    Keeping Justice (Largely) Out of Charity: Pluralism and the Division of Labor Between Charitable Organizations and the State.Daniel Halliday & Matthew Harding - 2020 - Legal Theory 26 (4):281-304.
    Justice can be pursued by the state, or through voluntary charity. This paper seeks to contribute to the debate about the appropriate division of labor between government and charitable agencies by developing a positive account of the charity sector's moral foundations. The account given here is grounded in a legal conception of charity, as a set of subsidies and privileges designed to cultivate a wide variety of activities aimed at enhancing civic virtue and autonomy. Among other things, this implies that (...)
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  2.  3
    Working as Equal Moral Agents.Sabine Tsuruda - 2020 - Legal Theory 26 (4):305-337.
    ABSTRACTThis article develops and advances a liberal ideal of equality for evaluating the lawful scope of employer control over employees. It argues that, in addition to attending to discrimination and bargaining power asymmetries, we should ensure that our laws treat workers as the moral equals of their bosses more broadly—as people with equally weighty claims to exercising agency over their own values and lives. To illustrate, the article explains that employer control over workplace expression can preclude colleagues from communicating with (...)
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  3.  6
    Mistaken Authority and Obligation.Luciano Venezia - 2020 - Legal Theory 26 (4):338-351.
    Massimo Renzo argues that, as long as it is acting in good faith, an authority can issue orders that require subjects to act in ways that are morally wrong and still be acting within the scope of its jurisdiction, so that the orders are binding. This, however, is incorrect. If the authority is permitted to issue an order, it is acting within the scope of its jurisdiction and so the order creates an obligation. But if the authority is not permitted (...)
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  4.  29
    The New Legal Anti-Positivism.Hasan Dindjer - 2020 - Legal Theory 26 (3):181-213.
    According to a recent wave of work by legal anti-positivists, legal norms are a subset of moral norms. This striking “one-system” view of law has rapidly become the dominant form of anti-positivism, but its implications have so far been little tested. This article argues that the one-system view leads systematically to untenable conclusions about what legal rights and obligations we have. For many clear legal norms, the view lacks the resources to explain the existence of corresponding moral norms. And its (...)
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  5.  4
    Tolerance of Incoherence in Law, Graded Speech Acts and Illocutionary Pluralism.Oren Perez - 2020 - Legal Theory 26 (3):214-249.
    One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential (...)
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  6.  4
    Compensation and Continuity.Sandy Steel - 2020 - Legal Theory 26 (3):250-279.
    ABSTRACTThis article examines accounts of the moral basis of compensatory duties that explain such duties as the continuation, in some way, of the pre-wrong normative situation. I identify, contrast, and assess three versions of this view—duty continuity, right continuity, and reasons continuity. I argue that each version is defensible, once properly articulated. The article responds to a range of objections to these views that have not received much critical attention by their proponents.
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  7.  8
    Law's Boundaries.Adam Perry - 2020 - Legal Theory 26 (2):103-123.
    The norms of a legal system are relevant in deciding on people's rights and duties within that system. Some norms that are not part of a legal system are also relevant within it: norms of foreign legal systems, games, clubs, contracts, grammar, and so on. What distinguishes the norms of a legal system from the norms merely relevant within it? Where, in other words, are law's boundaries? There are three existing answers in the literature, from Kramer, Shapiro, and Raz. None (...)
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  8.  6
    Constitutional Law and the Limits of Rawlsian Liberty.Gillian Sinnott - 2020 - Legal Theory 26 (2):124-155.
    ABSTRACTThis paper examines the scope of John Rawls's theory of liberty. It first develops an account of how this theory, which Rawls presents in largely abstract terms, applies in specific cases. It then argues that this account reveals that the scope of Rawls's theory of liberty is surprisingly narrow and that it does not include such seemingly obvious liberal rights as the freedom to engage in the sexual behavior of one's choice or to have access to pornography.
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  9.  11
    Procedural Rights and Factual Accuracy.Hamish Stewart - 2020 - Legal Theory 26 (2):156-179.
    ABSTRACTPeople have procedural rights because states are under a duty of political morality to provide them with fair procedures for settling disputes about the application of the laws. This obligation flows from the state's duty to treat each person as a free and equal member of the legal order. Yet adherence to procedural rights can impede accuracy in fact-finding, which in turn can result in poor protection for substantive rights. So the state also has a duty to provide a reasonable (...)
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  10.  10
    Preserving the Interest Theory of Rights.Mark McBride - 2020 - Legal Theory 26 (1):3-39.
    ABSTRACTAccording to interest theorists of rights, rights function to protect the right-holder's interests. True. But this leaves a lot unsaid. Most saliently here, it is certainly not the case that every agent who stands to benefit from performance of a duty gets to be a right-holder. For a theory to allow this to be the case—to allow for an explosion of right-holders—would be tantamount to a reductio thereof. So the challenge for interest theorists is to respect the core of the (...)
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  11.  10
    Protected Reasons and Precedential Constraint.Robert Mullins - 2020 - Legal Theory 26 (1):40-61.
    ABSTRACTAccording to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections (...)
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  12.  4
    Protected Reasons and Precedential Constraint—Erratum.Robert Mullins - 2020 - Legal Theory 26 (1):100-101.
    According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections (...)
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  13.  35
    A New Interpretivist Metasemantics for Fundamental Legal Disagreements.François Schroeter, Laura Schroeter & Kevin Toh - 2020 - Legal Theory 26 (1):62-99.
    ABSTRACTWhat does it take for lawyers and others to think or talk about the same legal topic—e.g., defamation, culpability? We argue that people are able to think or talk about the same topic not when they possess a matching substantive understanding of the topic, as traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines the content of thoughts and utterances is what would best serve the core purposes of (...)
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