Legal Theory

ISSN: 1352-3252

13 found

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  1.  44
    Neglecting Others and Making It Up to Them: The Idea of a Corrective Duty.Giulio Fornaroli - 2023 - Legal Theory 29 (4):289-313.
    I aspire to answer two questions regarding the concept of a corrective duty. The first concerns what it means to wrong others, thus triggering a demand for corrections (the ground question). The second relates to the proper content of corrective duties. I first illustrate how three prominent accounts of corrective duties—the Aristotelian model of correlativity, the Kantian idea that wronging corresponds to the violation of others’ right to freedom, and the more recent continuity view—have failed to answer the two questions (...)
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  2.  7
    Administration as Democratic Trustee Representation.Katharine Jackson - 2023 - Legal Theory 29 (4):314-348.
    The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials of the administrative state ironically obstruct the application of collective power. But this “folk” theory of democracy is bad theory. (...)
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  3.  11
    Proportionality, Comparability, and Parity: A Discussion on the Rationality of Balancing.Piero Ríos Carrillo - 2023 - Legal Theory 29 (4):257-288.
    This article analyses the rationality of the principle of proportionality as a justificatory method for solving cases involving conflicts of constitutional principles. It addresses the “problem of comparability”: a set of arguments claiming that proportionalists fail to understand what happens when constitutional principles collide. The problem of comparability suggests that balancing cannot be done if some conflicts of constitutional principles are, in reality, cases of noncomparability, incommensurability, incomparability, or vagueness. In this article, I challenge the views of both proportionalists and (...)
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  4.  8
    Precedent and Fairness.Adam Perry - 2023 - Legal Theory 29 (3):185-201.
    Courts in common law systems decide cases as they decided like cases in the past—even if they believe they decided those past cases wrongly. What, if anything, justifies this practice? I defend two main claims. The first is that fairness favors treating like cases alike if that means treating them correctly. The second is that, in general, a court is as likely to decide an instant case correctly as it was to decide a previous and like case correctly. Together, these (...)
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  5.  14
    The Promise and Limits of Grounding in Law.Bosko Tripkovic & Dennis Patterson - 2023 - Legal Theory 29 (3):202-228.
    Discussions of metaphysical grounding have recently found their way into general jurisprudence. It is becoming increasingly common to frame the debate between positivism and antipositivism as a disagreement about what facts metaphysically ground legal facts. In this article we critically evaluate this grounding turn. First, we argue that articulating the debate about the nature of law in terms of grounding holds the promise of recasting it in a common vocabulary. Second, we argue that this comes at a cost: framing the (...)
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  6.  11
    The Exclusionary Power of Political Directives.Yuan Yuan - 2023 - Legal Theory 29 (3):229-256.
    I defend the exclusionary power of political directives. The prevailing account, which I call the additive account, holds that a legitimate directive only provides a pro tanto obligation for subjects to comply. I show that it falls into a Goldilocks dilemma, giving either insufficient or excessive weight to these obligations. Pace the additive account, I argue that a legitimate directive not only gives subjects a pro tanto reason to comply but also excludes all the reasons bearing on its justifiability regarding (...)
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  7.  2
    Introduction by the Guest Editors.James Edwards, Kate Greasley & Adam Perry - 2023 - Legal Theory 29 (2):89-89.
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  8.  12
    Rights, Abstraction, and Correlativity.Julian David Jonker - 2023 - Legal Theory 29 (2):122-150.
    I survey several counterexamples (by Raz and MacCormick) to Hohfeld's conjecture that a claim-right is correlative to a directed duty and (by Cornell and Frick) to Bentham's suggestion that a claim-right is correlative to a wronging. We can vindicate these claims of correlativity if we acknowledge that entitlements like claim-rights and directed duties admit of degrees of abstraction: that they may be general rather than specific, unspecified rather than specified, or indefinite rather than definite. I provide an error theory consisting (...)
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  9.  19
    Are There Any Conventional Obligations?Ezequiel Monti - 2023 - Legal Theory 29 (2):90-121.
    There are reasons to believe that conventional obligations are impossible. Thus, it could be argued that for me to have an obligation to Φ in virtue of the fact that a convention so requires, it must be the case that I have a convention-independent obligation to do something else such that, given the existence of the convention, Φing is a way of doing just that. But, then, my obligation to Φ would not really be conventional at all. On closer inspection, (...)
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  10.  98
    Speaking for Others from the Bench.Wendy Salkin - 2023 - Legal Theory 29 (2):151-184.
    In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention has been paid to the question whether judges act as representatives for the parties before them through their everyday work on the (...)
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  11.  8
    Jurisdiction and the Moral Impact Theory of Law.Michael S. Green - 2023 - Legal Theory 29 (1):29-62.
    Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community's law practices can, and cannot, (...)
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  12.  3
    The Dogma of Opposing Welfare and Retribution.Leora Dahan Katz - 2023 - Legal Theory 29 (1):2-28.
    There is a common refrain in the literature on punishment that presumes the mutual exclusivity of defending retribution and adopting a humanistic or welfare-oriented outlook. The refrain, that if we want to be humane, or care about human welfare, we must abandon retributive punishment, anger, and resentment is readily repeated, endorsed, and relied upon. This article suggests that this opposition is false: retribution and welfare-orientation can not only be endorsed concomitantly, but are complimentary projects, and may even be grounded in (...)
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  13.  15
    Political Reasons and the Limits of Political Authority.Arie Rosen - 2023 - Legal Theory 29 (1):63-88.
    Authority is a normative power to create duties in others. The most plausible accounts of this general power relate it to existing reasons the subjects of authority have with which authoritative directives can help them comply. Such accounts lead some theorists to ascribe a morally ambitious function to political institutions. This article argues against such theories. It defends political authority as a modest normative power, constrained by the type of reasons with which it can help its subjects comply. This modest (...)
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