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  1. The Law from Wergild to the Postmodern: thinking of Restorative Justice.Chatterjee Subhasis Chattopadhyay - manuscript
    This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.
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  2. Identification of Legal Content, Legal Nihilism and Propriety of Methods of Interpretation.Michał Wieczorkowski - manuscript
    How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...)
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  3. (1 other version)Jurisprudence in an African Context, 2nd edn (2nd edition).David Bilchitz, Thaddeus Metz & Oritsegbubemi Anthony Oyowe - 2024 - Oxford University Press.
    The first and only jurisprudence textbook to put African ideas, authors, and texts into conversation with those from the Western tradition, now with revised and expanded discussions of especially natural law theory, legal realism, postmodernism, critical legal studies, critical race theory, feminism, and the philosophy of punishment, along with new lists of additional readings and of web resources. 430 pp.
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  4. Impossibility of Artificial Inventors.Matt Blaszczyk - 2024 - Intellectual Property Forum 137:39-48.
    Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many the courts all over the world. This Article analyses these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. The Article challenges the intellectual property (IP) post-humanists, exposing the analytical (...)
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  5. Decentralized Autonomous Organizations and Regulatory Competition: A Race Without a Cause.Matt Blaszczyk - 2024 - North Dakota Law Review 99:107-122.
    Several states have enacted specialized limited liability company legislation in an attempt to attract decentralized autonomous organizations. In this way, the regulatory competition debate surrounding states such as Wyoming, Tennessee, and Vermont, attempting to dethrone Delaware, has found a new battleground. According to Professor Lynn LoPucki, this will entail a regulatory race to the bottom, that is, a race to “laxity.” I disagree. In fact, deregulation has already been achieved in the traditional limited liability company form. The decentralized autonomous organization (...)
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  6. Section 230 Reform, Liberalism, and Their Discontents.Blaszczyk Matt - 2024 - California Western Law Review 60 (2):221-314.
    The Section 230 debate is a proxy for reevaluating constitutional fundamentals. The modern right and the modern left, both attacking Section 230, have abandoned liberalism, together with free speech, public private divide, and the politics of neutrality. Instead of believing in First Amendment value pluralism, each side of the spectrum wishes to realize their own positive normative vision for the political community which, today, is largely defined in the realm of digital culture. Each side recognizes the political other as an (...)
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  7. Impossibility of Emergent Works’ Protection in U.S. and EU Copyright Law.Matt Blaszczyk - 2023 - North Carolina Journal of Law and Technology 25 (1):1-55.
    Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they (...)
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  8. Realism and Positivism.David Frydrych - 2022 - Jurisprudence 13 (4).
    Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...)
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  9. Review of The Philosophy of Legal Change: Theoretical Perspectives and Practical Processes[REVIEW]Simon Gansinger - 2021 - Jurisprudence 12 (4):637-648.
    Critical review of "The Philosophy of Legal Change," edited by Maciej Chmieliński and Michał Rupniewski, the first volume on its subject matter, with some general remarks on the philosophical methodology of conceptualising legal change.
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  10. How to theorise about the criminal law: thoughts on methodology prompted by Alex Sarch’s Criminally Ignorant.Aness Kim Webster - 2021 - Jurisprudence 12 (2):247-258.
    Alex Sarch’s recent book, Criminally Ignorant: Why the Law Pretends We Know What We Don’t is a wonderfully rich work.1 Sarch provides and defends an explanatorily powerful theory of criminal culpab...
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  11. Describing Law.Raff Donelson - 2020 - Canadian Journal of Law and Jurisprudence 33 (1):85-106.
    Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...)
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  12. Laws as Conventional Norms.Nicholas Southwood - 2019 - In David Plunkett, Scott Shapiro & Kevin Toh (eds.), Dimensions of Normativity: New Essays on Metaethics and Jurisprudence. Oxford: Oxford University Press.
    A persistent worry concerning conventionalist accounts of law is that such accounts are ill equipped to account for law’s special normativity. I offer a particular kind of conventionalist account that is based on the practice-dependent account of conventional norms I have offered elsewhere and consider whether it is vulnerable to the Normativity Objection. I argue that it isn’t. It can account for all the ways in which law can justly claim to be normative. While there are ways of being normative (...)
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  13. Law is an Institution an Artifact and a Practice.Kenneth M. Ehrenberg - 2018 - In Luka Burazin, Kenneth Einar Himma & Corrado Roversi (eds.), Law as an Artifact. Oxford, United Kingdom: Oxford University Press. pp. 177-191.
    I have argued that law is a genre of institutionalized abstract artifact, meaning that laws are purposive products of human creation designed to signal norms of behavior with respect to them. Its institutional nature is seen in the fact that it is a system of artificial statuses that convey deontic powers to status holders understood in their institutional roles. Following Searle in explaining institutions, however, is also to see the institution as the 'continuing possibility of a practice.' Hence there is (...)
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  14. Assessment sensitivity in legal discourse.Andrej Kristan & Massimiliano Vignolo - 2018 - Inquiry: An Interdisciplinary Journal of Philosophy 61 (4):394-421.
    We explain three phenomena in legal discourse in terms of MacFarlane’s assessment-sensitive semantics: incompatible applications of law, assessments of statements about what is legally the case, and retrospective overruling. The claim is that assessment sensitivity fits in with the view, shared by many legal theorists at least with respect to hard cases, that the final adjudicator’s interpretation of legal sources is constitutive of the applied norm. We argue that there are strong analogies between certain kinds of statements in legal discourse (...)
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  15. (1 other version)Jurisprudence in an African Context.David Bilchitz, Thaddeus Metz & Oritsegbubemi Oyowe - 2017 - Oxford University Press.
    A textbook written mainly for final year law students taking Jurisprudence at an African university, but that would also be of use to those in a political philosophy course. It includes primary sources from both the Western and African philosophical traditions, and addresses these central questions: what is the nature of law?; how should judges interpret the law?; is it possible for judges to be objective when they adjudicate?; how could the law justly allocate liberty and property?; who is owed (...)
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  16. Down the Methodological Rabbit Hole.David Frydrych - 2017 - Crítica. Revista Hispanoamericana de Filosofía 49 (147):41-73.
    This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...)
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  17. The Functions of Law.Kenneth M. Ehrenberg - 2016 - Oxford, United Kingdom: Oxford University Press.
    What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...)
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  18. Law and Authority Under the Guise of the Good, by Veronica Rodriguez-Blanco.Ori J. Herstein - 2016 - Mind 125 (500):1213-1222.
    Law and Authority Under the Guise of the Good, by Rodriguez-BlancoVeronica. Oxford : Hart Publishing, 2014. Pp. 215.
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  19. Evaluating the Force of Law's Force. [REVIEW]Lucas Miotto - 2015 - Australian Journal of Legal Philosophy 40:229-236.
  20. What Makes Law: An Introduction to the Philosophy of Law.Liam Murphy - 2014 - New York, NY: Cambridge University Press.
    This book offers an advanced introduction to central questions in legal philosophy. What factors determine the content of the law in force? What makes a normative system a legal system? How does law beyond the state differ from domestic law? What kind of moral force does law have? The most important existing views are introduced, but the aim is not to survey the existing literature. Rather, this book introduces the subject by stepping back from the fray to sketch the big (...)
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  21. A Legal Right to Do Legal Wrong.Ori J. Herstein - 2013 - Oxford Journal of Legal Studies (1):gqt022.
    The literature, as are the intuitions of many, is sceptical as to the coherence of ‘legal rights to do legal wrong’. A right to do wrong is a right against interference with wrongdoing. A legal right to do legal wrong is, therefore, a right against legal enforcement of legal duty. It is, in other words, a right that shields the right holder’s legal wrongdoing. The sceptics notwithstanding, the category of ‘legal right to do legal wrong’ coheres with the concepts of (...)
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  22. When Is a Regime Not a Legal System? Alexy on Moral Correctness and Social Efficacy.David H. McIlroy - 2013 - Ratio Juris 26 (1):65-84.
    Robert Alexy defines law as including a claim to moral correctness and demonstrating social efficacy. This paper argues that law's social efficacy is not merely an observable fact but is undergirded by moral commitments by rulers that it is possible for their subjects to follow the rules, that the rulers and others will also follow the rules, that subjects will be protected from violence if they act in accordance with the rules, and that subjects will be entitled to legal redress (...)
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  23. The Anarchist Official: A Problem for Legal Positivism.Kenneth M. Ehrenberg - 2011 - Australian Journal of Legal Philosophy 36:89-112.
    I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist (...)
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  24. The Logic of “Asked and Answered!”: The case of the traffic light.Joseph S. Fulda - 2010 - Ratio Juris 23 (2):282-287.
    Uses erotetic logic to model the courtroom objection "Asked and Answered!".
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  25. (1 other version)Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”.Ori J. Herstein - 2010 - Canadian Journal of Law and Jurisprudence 23 (2):403-428.
    Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (...)
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  26. Social Rights Jurisprudence: Emerging Trends in International and Comparative Law.Malcolm Langford (ed.) - 2009 - Cambridge University Press.
    In the space of two decades, social rights have emerged from the shadows and margins of human rights jurisprudence. The authors in this book provide a critical analysis of almost two thousand judgments and decisions from twenty-nine national and international jurisdictions. The breadth of the decisions is vast, from the resettlement of evictees to the regulation of private medical plans to the development of state programs to address poverty and illiteracy. The jurisprudence not only implicates our understanding of economic, social, (...)
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  27. Analytical jurisprudence and the concept of commercial law.John Linarelli - 2009 - Penn State Law Review 114 (1):119-215.
    Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...)
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  28. Defending the possibility of a neutral functional theory of law.Kenneth M. Ehrenberg - 2008 - Oxford Journal of Legal Studies 29 (1):91.
    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (...)
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  29. The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited.Veronica Rodriguez Blanco - 2006 - Ratio Juris 19 (1):26-54.
    Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows that the responses (...)
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  30. Legal positivism: Still descriptive and morally neutral.Andrei Marmor - 2006 - Oxford Journal of Legal Studies 26 (4):683-704.
    It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not (...)
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  31. A Revision of the Constitutive and Epistemic Coherence Theories in Law.Veronica Rodriguez-Blanco - 2001 - Ratio Juris 14 (2):212-232.
    This paper analyses and criticizes Joseph Raz's attacks on coherentist theories. It is argued that Raz's characterisation of epistemic coherence theories is too narrow and that his criticism of constitutive coherence theories is based on a conceptual mistake in his own description. The study is an indirect argument to rethink coherence theories of law and adjudication within a more powerful framework than that propounded by Raz.
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  32. The logic of “improper cross”.Joseph S. Fulda - 2000 - Artificial Intelligence and Law 8 (4):337-341.
    Uses erotetic logic to model the courtroom objection "Improper Cross!". -/- Readers downloading the article should also please download the erratum et corrigendum, which is locally available.
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  33. Alchourron, Bulygin and italian legal theory.P. Comanducci - 1997 - Rechtstheorie 28 (3).
    The essay briefly review the intellectual bonds between Alchourrón and Bulygin and Italian legal thought. Alchourrón and Bulygin’s seminal work is widely read in Italy; and by now is considered essential groundwork by a growing generation of young legal scholars.
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  34. Struttura e dinamica dei sistemi giuridici.Paolo Comanducci & Riccardo Guastini - 1996
    Il volume raccoglie gli Atti del 1° convegno italo-spagnolo di teoria analitica del diritto, svoltosi a Imperia nei giorni 27-29 aprile del 1995. Con un approccio analitico alla teoria del diritto, sono stati trattati, tra gli altri, i temi seguenti: efficacia e applicabilità delle norme; identificazione del diritto; lacune; metanorme; fonti del diritto; consuetudine; esistenza di norme e sistemi normativi;norme supreme.
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  35. Formalizing multiple interpretation of legal knowledge.Andreas Hamfelt - 1995 - Artificial Intelligence and Law 3 (4):221-265.
    A representation methodology for knowledge allowing multiple interpretations is described. It is based on the following conception of legal knowledge and its open texture. Since indeterminate, legal knowledge must be adapted to fit the circumstances of the cases to which it is applied. Whether a certain adaptation is lawful or not is measured by metaknowledge. But as this too is indeterminate, its adaptation to the case must be measured by metametaknowledge, etc. This hierarchical model of law is quite well-established and (...)
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  36. Hard cases: A procedural approach. [REVIEW]Jaap C. Hage, Ronald Leenes & Arno R. Lodder - 1993 - Artificial Intelligence and Law 2 (2):113-167.
    Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...)
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  37. The Logic of the Whole Truth.Joseph S. Fulda - 1989 - Rutgers Computer and Technology Law Journal 15 (2):435-446.
    Note: The author holds the copyright, and there was no agreement, express or implied, not to use a facsimile PDF. -/- Using erotetic logic, the paper defines the "the whole truth" in a manner consistent with U.S. Supreme Court precedent. It cannot mean "the whole story," as witnesses in an adversary system are permitted /only/ to answer the questions put to them, nor are they permitted to speculate, add irrelevant material, etc. Nor can it mean not to add an admixture (...)
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  38. THE EDUCATION OF A FOUNDING FATHER: The Reading List for John Witherspoon's Course in Political Theory, as Taken by James Madison.Dennis F. Thompson - 1976 - Political Theory 4 (4):523-529.
    ...Witherspoon's Course in Political Theory, as Taken by James Madison Dennis F. Thompson Princeton University [523...Witherspoon's Course in Political Theory, as Taken by James Madison. James Madison was an unusually wen-prepared student when, at eighteen...
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  39. The Austinian theory of law: being an edition of lectures I, V, and VI of Austin's "Jurisprudence," and of Austin's "Essay on the uses of the study of jurisprudence" with critical notes and excursus.John Austin - 1906 - Littleton, Colo.: F.B. Rothman. Edited by W. Jethro Brown.
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  40. (1 other version)Lectures on jurisprudence, or, The philosophy of positive law.John Austin - 1885 - Clark, N.J.: Lawbook Exchange. Edited by Robert Campbell.