12 found

Year:

  1.  2
    The Efficacy Condition.Thomas Adams - 2019 - Legal Theory 25 (4):225-243.
    ABSTRACT“A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an attempt to make up the deficit. I make the case for efficacy (...)
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  2.  5
    The Scope of Religious Group Autonomy: Varieties of Judicial Examination of Church Employment Decisions.Paul Billingham - 2019 - Legal Theory 25 (4):244-271.
    ABSTRACTThe idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial (...)
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  3.  6
    Hate Speech Laws: Expressive Power is Not the Answer.Maxime Lepoutre - 2019 - Legal Theory 25 (4):272-296.
    ABSTRACTAccording to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. (...)
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  4.  2
    The Authority of Moral Oversight: On the Legitimacy of Criminal Law.Christopher Bennett - 2019 - Legal Theory 25 (3):153-177.
    ABSTRACTAn influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what kind of authority is being claimed by this apparatus. The criminal (...)
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  5. Sensitivity, Safety, and the Law: A Reply to Pardo.David Enoch & Levi Spectre - 2019 - Legal Theory 25 (3):178-199.
    ABSTRACTIn a recent paper, Michael Pardo argues that the epistemic property that is legally relevant is the one called Safety, rather than Sensitivity. In the process, he argues against our Sensitivity-related account of statistical evidence. Here we revisit these issues, partly in order to respond to Pardo, and partly in order to make general claims about legal epistemology. We clarify our account, we show how it adequately deals with counterexamples and other worries, we raise suspicions about Safety's value here, and (...)
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  6.  15
    Contractualist Justification and the Direction of a Duty.Julian Jonker - 2019 - Legal Theory 25 (3):200-224.
    ABSTRACTTo whom is a duty owed? Contractualism answers with an interest theory of direction. As such, it faces three challenges. The Conceptual Challenge requires acknowledgment that a duty is conceptually distinct from an interest. The Extensional Challenge requires an account of cases in which one who is owed a duty does not take an interest in the duty, or does not take as much of an interest as someone who is not owed the duty. The Positivist Challenge requires explanation of (...)
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  7.  18
    Multiple Reasonable Behaviors Cases: The Problem of Causal Underdetermination in Tort Law.Maytal Gilboa - 2019 - Legal Theory 25 (2):77-104.
  8.  19
    The Elusive Object of Punishment.Gabriel S. Mendlow - 2019 - Legal Theory 25 (2):105-131.
    All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and (...)
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  9. Theories of Vagueness and Theories of Law.Alex Silk - 2019 - Legal Theory 25 (2):132-152.
    It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...)
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  10.  15
    Vague Comparisons and Proportional Sentencing.Jacob Bronsther - 2019 - Legal Theory 25 (1):26-52.
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  11.  73
    Law-Determination as Grounding: A Common Grounding Framework for Jurisprudence.Samuele Chilovi & George Pavlakos - 2019 - Legal Theory 25 (1):53-76.
    Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...)
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  12. Grounding Procedural Rights.N. P. Adams - 2019 - Legal Theory (1):3-25.
    Contrary to the widely accepted consensus, Christopher Heath Wellman argues that there are no pre-institutional judicial procedural rights. Thus commonly affirmed rights like the right to a fair trial cannot be assumed in the literature on punishment and legal philosophy as they usually are. Wellman canvasses and rejects a variety of grounds proposed for such rights. I answer his skepticism by proposing two novel grounds for procedural rights. First, a general right against unreasonable risk of punishment grounds rights to an (...)
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