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  1.  6
    The Dual Nature Thesis as a Cornerstone of Jurisprudence.Stefano Bertea - 2022 - American Journal of Jurisprudence 67 (1):57-82.
    : In this work I defend the view that the “dual nature thesis” stands as a cornerstone of jurisprudence, in the sense that there cannot be any general theory of law that can afford to do away with it. Defending this stance requires me to first characterize the dual nature thesis in some detail. In this process, I will argue for a basic sense of the thesis under which law is best conceived as a social practice that could not work (...)
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  2.  2
    Justice in Contracts.Hanoch Dagan & Avihay Dorfman - 2022 - American Journal of Jurisprudence 67 (1):1-32.
    The mission of justice for contracts seems to be solely one of gatekeeping. As long as the justice of the bargaining stage is secured and the parties’ agreement complies with a proper floor of legitimacy, contract law, on this conventional approach, must simply follow the parties’ preferences. Doctrines that govern contractual performance and breach by appealing to justice considerations are thus portrayed as either confused or misguided. The justice rhetoric either covers for other, notably economic, considerations or undermines contract law’s (...)
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  3.  4
    Less Incorrect Ways of Doing Jurisprudence.Raffael N. Fasel - 2022 - American Journal of Jurisprudence 67 (1):83-117.
    : Theorists interested in the question of how to do jurisprudence often have the aspiration of developing a method that is the correct one. The article challenges this aspiration. Focusing on Julie Dickson’s claim that Indirectly Evaluative Legal Theory is the correct method, I show that any method claiming to be the correct one runs into the problem that law is not the kind of thing that a legal theorist could capture independently of her underlying conception of law, and without (...)
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  4.  4
    Fictions, Lies, and the Authority of Law Steven D. Smith.R. George Wright - 2022 - American Journal of Jurisprudence 67 (1):131-139.
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  5.  2
    Subsidiarity and the Criminal Jury.Michael Plaxton - 2022 - American Journal of Jurisprudence 67 (1):33-56.
    The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does not function merely as a verdict-generating machine, or as a procedural safeguard for individual defendants. (...)
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  6.  9
    Presently Absent, or Absently Present? The Curious Condition of Natural Law.Steven D. Smith - 2022 - American Journal of Jurisprudence 67 (1):119-130.
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  7.  6
    Conditions, Fictions and the Basic Norm.Kristin Y. Albrecht - 2022 - American Journal of Jurisprudence 66 (2):279-290.
    : This paper reflects on Christoph Kletzer’s absolute positivism and puts a focus on a view of the basic norm that grounds the validity of law in the law itself. I will try to explain the significance of this idea against the backdrop of Hans Kelsen’s transformation of the basic norm from a “hypothesis” to a “fiction.” I shall argue that the goal of an ultimate foundation of the objective validity of a legal order can only be accomplished by a (...)
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  8.  2
    The End of the Affair Reviewing Joel Harrison, Post-Liberal Religious Liberty: Forming Communities of Charity.Marc O. DeGirolami - 2022 - American Journal of Jurisprudence 66 (2):409-413.
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  9.  3
    Permissions, Deontic Voids, and the Karamazov Argument.Michael S. Green - 2022 - American Journal of Jurisprudence 66 (2):291-307.
    : This essay criticizes three positions concerning permissions taken by Christoph Kletzer in his book The Idea of a Pure Theory of Law. First, Kletzer argues that Hans Kelsen should have understood X has having a legal obligation to φ if and only if someone else is permitted to exercise force upon X for not-φ-ing. Kelsen in fact had good reasons to speak of empowerment rather than only of permission. The second topic concerns the type of strong permission that Joseph (...)
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  10.  1
    Religion as a Basic Human Good.Thomas D. Howes - 2022 - American Journal of Jurisprudence 66 (2):239-267.
    : For the sake of defending the political-ethical legitimacy of religious exemptions, this article analyzes what contemporary natural law theorists call the good of religion—harmony with the transcendent source of existence and meaning. This good serves as a principle in practical judgments, not as a premise in a deductive argument, but as an end of action. Practical familiarity and explicit understanding of this good can differ among individuals, and variations of such familiarity and understanding lead to differing practical judgments concerning (...)
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  11.  2
    Philosophy, Law, and Permission.Christoph Kletzer - 2022 - American Journal of Jurisprudence 66 (2):373-393.
    : The Idea of a Pure Theory of Law presents a new jurisprudential theory based on Hans Kelsen's Pure Theory of Law. This article responds to some criticisms of that book, in particular those that question the role that permissions can play in our thinking about he law. The article begins with a brief restatement of the basic ideas behind my theory of permission and then tackles the most salient clusters of criticism. It ends with a discussion of some more (...)
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  12.  1
    Positivism’s Implosion.Maris Köpcke - 2022 - American Journal of Jurisprudence 66 (2):355-371.
    : Kletzer’s recent book The Idea of a Pure Theory illustrates the incoherence of a legal theory’s methodological commitment to “purity,” and hence to independence from moral and empirical concerns. Unlike other self-styled “positivist” accounts that pay mere lip service to this methodological agenda, Kletzer helpfully spells it out and follows it through, to the point of expunging from his account anything bearing the resemblance of an argument from first principles. He associates moral with theological reasoning, and theological reasoning in (...)
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  13.  4
    The New Formalism in Private Law.Paul B. Miller - 2022 - American Journal of Jurisprudence 66 (2):175-238.
    : Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of (...)
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  14.  4
    The Temptation of Cosmic Private Law Theory.Nathan B. Oman - 2022 - American Journal of Jurisprudence 66 (2):395-408.
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  15.  1
    Kelsen, Kletzer, and the Differentiation of Law.Frederick Schauer - 2022 - American Journal of Jurisprudence 66 (2):269-278.
    : The differentiation of law is a pervasive and crucially important topic. Although H.L.A. Hart and others have stressed how law resembles games and other institutions, Hans Kelsen’s focus on law as a “specific” social technique represents a needed focus on what makes law different, or special. Christoph Kletzer admirably follows Kelsen in focusing and what makes law unique, and Kletzer’s claim that law is unique in ordering the use of force is also a valuable contribution to the project of (...)
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  16. Kletzer’s Direttissima.N. E. Simmonds - 2022 - American Journal of Jurisprudence 66 (2):339-353.
    Kletzer believes that, by focusing upon permission, we can derive the law’s obligatory power from the idea that the world is normatively inert. In a normatively inert world, everything is permitted. Consequently, if the law operates by permitting the use of force, it requires no deep normative underpinning: it could even invoke moral nihilism as its basis. Although ingenious, this argument faces two formidable problems. Firstly, in a normatively inert world, permissions can have causal effects but no normative effects. And (...)
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  17. A Pure Theory with a Naturalistic Fallacy? A Critique of Kletzer’s Reformulation.Alexander Somek - 2022 - American Journal of Jurisprudence 66 (2):321-337.
    : Kletzer’s book is the most important and most original contribution to the project of the Pure Theory of law that we have seen in decades. The reformulation that is offered by Kletzer raises the question, however, whether it is also consistent with Kelsen’s original project. This may be doubted, for it is to be feared that Kletzer’s theory involves a variety of the naturalistic fallacy and celebrates de facto as natural law the law of the jungle. As an attempt (...)
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  18. Kletzer on Permissions.Lars Vinx - 2022 - American Journal of Jurisprudence 66 (2):309-320.
    : Kelsen argued that any legal system claims a monopoly of the legitimate use of coercive force. Where there is law, Kelsen held, uses of force are prohibited unless they are specifically authorized by the law. Christoph Kletzer's reconstruction of the Pure Theory of Law offers a more austere picture of the relation between law and coercive force. According to Kletzer, the law regulates the use of force simply by permitting it. To make good on this claim, Kletzer must show (...)
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