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  1. People Engaging with Justice: Petitions to the Scottish Parliament.Ruth Breeze - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique.
    When the new Scottish Parliament was established through the Scotland Act of 1998, various innovative steps were taken to guarantee greater public participation in political processes. One of these measures, the Scottish e-petitioning system, provides a vehicle for interested citizens to petition the parliament directly on matters of public interest. This article examines all the e-petitions submitted since September 2011 in the area of Justice and Law, establishing how petitioners convey their own motivation for taking this step, and how Scottish (...)
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  2. Response Retributivism: Defending the Duty to Punish.Leora Dahan Katz - forthcoming - Law and Philosophy.
    This paper offers a response retributive theory of punishment, taking the role of the punisher as well as the relations between the parties to punishment to be central to retributive justification. It proposes that punishment is justified in terms of the ethics of appropriate response, and more precisely, in terms of the duty agents have to dissociate from the devaluation inherent in the culpable wrongdoing of others. The paper demonstrates that on such account, while the harm and suffering involved in (...)
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  3. The Law of Laws.Pavlos Eleftheriadis - forthcoming - Transnational Legal Theory 1 (3).
    How can legal orders coexist? Contemporary lawyers and philosophers frequently accept that a legal system operates under its own terms and is shaped by its own participants. Any problems posed by the plurality of legal orders in the world are to be dealt with by each legal order separately. So persons that are caught in transnational disputes because they are subject to two or more jurisdictions, have recourse to private international law, which is always part of domestic law, i.e. the (...)
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  4. The Good, The Bad, and the Puzzled: Coercion and Compliance.Lucas Miotto - forthcoming - In Jorge Luis Fabra Zamora & Gonzalo Villa Rosas (eds.), Conceptual Jurisprudence: Methodological Issues, Conceptual Tools, and New Approaches. Dordrecht, Netherlands:
    The assumption that coercion is largely responsible for our legal systems’ efficacy is a common one. I argue that this assumption is false. But I do so indirectly, by objecting to a thesis I call “(Compliance)”, which holds that most citizens comply with most legal mandates most of the time at least partly in virtue of being motivated by legal systems’ threats of sanctions and other unwelcome consequences. The relationship between (Compliance) and the efficacy of legal systems is explained in (...)
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  5. A Cry for Care But Not Justice: Embodied Vulnerabilities and the Moral Economy of Child Welfare.Zlatana Knezevic - 2020 - Affilia 2 (35):231–245.
    This study explores the pivotal role of the body for political recognition and rights claims in child welfare “moral” interventions. I examine how the bodily figures in child welfare assessments, linking these manifestations to the concept of the moral economy of care. A sample of assessment reports from a Swedish municipality, all addressing violations of children’s bodies or integrity, are used as empirical material. I show how the psychosomatically suffering child is being best “heard” as vulnerable. I also argue that (...)
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  6. Enforcing Immigration Law.Matthew Lister - 2020 - Philosophy Compass 15 (3).
    Over the last few years, an increasingly sophisticated literature devoted to normative questions arising out of the enforcement of immigration law had developed. In this essay, I consider what sorts of constraints considerations of justice and legitimacy may place on the enforcement of immigration law, even if we assume that states have significant discretion in setting their own immigration policies, and that open borders are not required by justice. I consider constraints placed on state or national governments, constraints on enforcement (...)
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  7. Commodifying Justice: Discursive Strategies Used in the Legitimation of Infringement Notices for Minor Offences.Elyse Methven - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (2):353-379.
    This article examines discursive strategies used by police and politicians to describe and justify the application of penalty notices to minor criminal offences. Critical discourse analysis is used as an analytical tool to show how neoliberal economic thinking has informed the prism through which infringement notices have been rationalised as a legitimate alternative to traditional criminal prosecution, while also highlighting the contradictions inherent in neoliberalism as an ideology through which to view the embrace of legally hybrid powers in the criminal (...)
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  8. Neuroenhancement, the Criminal Justice System, and the Problem of Alienation.Jukka Varelius - 2020 - Neuroethics 13 (3):325-335.
    It has been suggested that neuroenhancements could be used to improve the abilities of criminal justice authorities. Judges could be made more able to make adequately informed and unbiased decisions, for example. Yet, while such a prospect appears appealing, the views of neuroenhanced criminal justice authorities could also be alien to the unenhanced public. This could compromise the legitimacy and functioning of the criminal justice system. In this article, I assess possible solutions to this problem. I maintain that none of (...)
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  9. Civil Disobedience, Punishment, and Injustice.Candice Delmas - 2019 - In Larry Alexander & Kimberly Kessler Ferzan (eds.), The Palgrave Handbook of Applied Ethics and the Criminal Law. Springer Verlag. pp. 167-188.
    This chapter examines the tension between the justification and the punishment of civil disobedience, and theorists’ common solutions to it, by focusing on two central questions: first, should the state punish civil disobedience? Second, should the civil disobedient accept punishment? It presents the theoretical lay of the land on each of these questions, with particular attention to American jurisprudence on civil disobedience. The third part takes a step back to ask anew, how should we think about civil disobedience? and uncovers (...)
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  10. Legal Directives and Practical Reasons.Noam Gur - 2018 - Oxford University Press.
    This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, two (...)
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  11. The Possibility of a Fair Play Account of Legitimacy.Justin Tosi - 2017 - Ratio 30 (1):88-99.
    The philosophical literature on state legitimacy has recently seen a significant conceptual revision. Several philosophers have argued that the state's right to rule is better characterized not as a claim right to obedience, but as a power right. There have been few attempts to show that traditional justifications for the claim right might also be used to justify a power right, and there have been no such attempts involving the principle of fair play, which is widely regarded as the most (...)
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  12. “The Right to Self-Determination”: Right and Laws Between Means of Oppression and Means of Liberation in the Discourse of the Indigenous Movement of Ecuador.Philipp Altmann - 2016 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 29 (1):121-134.
    The 1970s and 1980s meant an ethnic politicization of the indigenous movement in Ecuador, until this moment defined largely as a class-based movement of indigenous peasants. The indigenous organizations started to conceptualize indigenous peoples as nationalities with their own economic, social, cultural and legal structures and therefore with the right to autonomy and self-determination. Based on this conceptualization, the movement developed demands for a pluralist reform of state and society in order to install a plurinational state with wide degrees of (...)
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  13. A Foundation for the Conception of Law as Practical Reason.Stefano Bertea - 2015 - Law and Philosophy 34 (1):55-88.
    This essay discusses a foundation of the connection argued to exist between law and practical reason that has proved to be highly influential and debated in contemporary legal philosophy – Alexy’s. After reconstructing Alexy’s conception of practical reason as well as its foundation, I criticise the weak transcendental-pragmatic argument Alexy uses to ground the authority of practical reason. This argument, I argue, can only show why occasionally, as opposed to necessarily, we ought to follow the guidance of practical reason, and (...)
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  14. Le Corti, il Legislatore e la Ragione Pubblica nella filosofia del diritto di Jeremy Waldron.Giovanni Cogliandro - 2015 - Rivista Internazionale di Filosofia Del Diritto 4:651-688.
    1. Indeterminatezza costituiva della ragione pubblica e governo della legge; 2. Concetto e rule of law; 3. Concetto, linguaggio e obbedienza; 4. Chain novel e struttura normativa; 5. Contrastanti armonie.
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  15. A Third Theory of Paternalism.Nicolas Cornell - 2015 - Michigan Law Review 113:1295-1336.
  16. The Structure of the Conflict Between Authority and Autonomy.Juan Iosa - 2014 - Canadian Journal of Law and Jurisprudence 27 (2):415-438.
    I propose a set of distinctions that demarcate the structure that I consider suitable for the study and determination of the true value of the thesis of conceptual incompatibility between authority and autonomy. I begin with an analysis of the standard conception of authority, i.e., correlativism. I distinguish two versions: the epistemic and the voluntarist. Then I offer an analysis of two conceptions of moral autonomy: self-legislation and self-judgment. I conclude by remarking that we should distinguish two different versions of (...)
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  17. Hans Kelsen's Concept of the 'Ought'.Robert Alexy - 2013 - Jurisprudence 4 (2):235-245.
    Focusing on Hans Kelsen's concept of the 'ought', the main problem is whether the 'ought' qua obligation or the 'ought' qua empowerment or competence serves as his fundamental normative concept. Stanley L Paulson has adduced strong textual arguments for the thesis that the fundamental role played by empowerment represented Kelsen's opinion ever since the late 1930s. But to accept the thesis of the fundamental character of empowerment as an interpretive thesis is not, eo ipso , to accept it as a (...)
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  18. The Rule of Law and Equality.Paul Gowder - 2013 - Law and Philosophy 32 (5):565-618.
    This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.
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  19. Billy Budd's Song: Authority and Music in the Public Sphere.Jonathan A. Neufeld - 2013 - Opera Quarterly 28 (3-4):172-191.
    While Billy Budd's beauty has often been connected to his innocence and his moral goodness, the significance of the musical character of his beauty—what I will argue is the site of a struggle for political expression—has not been remarked upon by commentators of Melville's novella. It has, however, been deeply explored by Britten's opera. Music has often been situated at, or just beyond, the limits of communication; it has served as a medium of the ineffable, of unsaid and unsayable truths (...)
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  20. Public Reason Between Ethics and Law.José de Sousa E. Brito - 2012 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 25 (4):465-472.
    Rawls says that public reason is the reason of the citizens of a democratic state and takes the Supreme Court in the USA as the exemplar of public reason. It differs from non public reason, which is used e.g., in universities and academic institutions. Rawls contrasts with Kant, which opposes the public reason of the scholar—or the philosopher—, who speaks before the world, to the private reason of state or church officials. The later, once they accept an authority, cannot think (...)
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  21. The Use and Abuse of Presumptions: Some Comments on Dempsey on Finnis.Matthew Lister - 2012 - Villanova Law Review 57:485.
    This paper is a short commentary on Michelle Dempsey's contribution to a symposium on the work of John Finnis which took place at Villanova Law School in the fall of 2011. It focuses on Finnis's claim that there is a presumptive obligation to obey the law and some worries that Dempsey raises against this claim. It is forthcoming, along with several other papers from the symposium, in the Villanova Law Review.
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  22. A Critical Examination of Jiri Priban's "Doing What Comes Naturally, or a Walk on the Wild Side? Stanlet Fish's Antifoundationalist Concept of Law, It's Closure and Force".Ross Motabhoy - 2012 - Dissertation, University of Kent
  23. Nomos and Narrative: Zu den Verfahren der Orestie.Katrin Trüstedt - 2012 - In Karl-Heinz Ladeur & Ino Augsberg (eds.), Die Innenwelt der Außenwelt der Innenwelt des Rechts. München: Fink. pp. 59–77..
  24. Review of Arthur Ripstein, Force and Freedom. [REVIEW]Andrew Botterell - 2011 - Canadian Journal of Political Science 44:457-458.
    A review of Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (Harvard University Press, 2009).
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  25. 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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  26. Are Legal Rules Content-Independent Reasons?Noam Gur - 2011 - Problema 5:175-210.
    I argue that the answer to the above question turns on three distinctions as to the meaning of content-independent reasons and the types of statement in which they feature. The first distinction is between two senses of content-independence, which I refer to as weak and strong content-independence. I argue that, while legal rules can (and often do) give rise to content-independent reasons in the weak sense, whether they can be said to generate content-independent reasons in the strong sense depends on (...)
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  27. The Legitimating Role of Consent in International Law.Matthew Lister - 2011 - Chicago Journal of International Law 11 (2).
    According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...)
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  28. Three Conceptions of Practical Authority.Daniel Star & Candice Delmas - 2011 - Jurisprudence 2 (1):143-160.
    Joseph Raz’s much discussed service conception of practical authority has recently come under attack from Stephen Darwall, who proposes that we instead adopt a second- personal conception of practical authority.1 We believe that the best place to start understanding practical authority is with a pared back conception of it, as simply a species of normative authority more generally, where this species is picked out merely by the fact that the normative authority in question is authority in relation to action, rather (...)
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  29. Francisco de Vitoria and Alberico Gentili on the Legal Character of the Global Commonwealth.Andreas Wagner - 2011 - Oxford Journal of Legal Studies 31 (3):565-582.
    In discussing the works of 16th-century theorists Francisco de Vitoria and Alberico Gentili, this article examines how two different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law. For Vitoria the legal bindingness of ius gentium necessarily presupposes an integrated character of the global commonwealth that leads him to as it were ascribe legal personality to the global community as a whole. But then its legal status and its (...)
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  30. Nonconstitutional Amendments.Richard Albert - 2009 - Canadian Journal of Law and Jurisprudence 22 (1):5-47.
    The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitutional. In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional (...)
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  31. The Normative Claim of Law.Stefano Bertea - 2009 - Hart.
    Meaning and status -- Generality and moral quality -- Content-dependence and discursive character -- Why grounds are needed -- Grounding the normativity of practical reason -- Grounding the normative claim and force of law.
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  32. 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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  33. Il liberalismo di Luigi Einaudi o del buongoverno Il Liberalismo di Luigi Einaudi o del buongoverno.Paolo Silvestri - 2008 - Rubbettino.
    Italian Abstract: L'opposizione buon governo/mal governo è stato considerata uno dei grandi temi, se non il più grande, della riflessione politica di tutti i tempi. In questo libro mi propongo di qualificare teoreticamente il senso e il modo in cui Luigi Einaudi riattualizza il mito del buongoverno alla luce della portata dirompente dell’economico per la modernità e dei suoi effetti sul giuridico, il politico e l’etico. Il baricentro del liberalismo di Luigi Einaudi o del buon governo va ricercato non tanto (...)
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  34. Justifications, Powers, and Authority.Malcolm Thorburn - 2008 - Yale Law Journal 117:1070.
    Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post (...)
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  35. The Morality of On Liberty.James Edwin Mahon - 2007 - Studies in the History of Ethics - Symposium on Mill's Ethics 1 (2007).
    In this paper I argue that, contrary to both H. L. A Hart and Patrick Devlin, and in sympathy with D. G. Brown, it is possible to read Mill as arguing in On Liberty that morality should be enforced, by public moral disapprobation by society, and by fines, imprisonment, execution, etc., by the state, when it will promote the general welfare. The difference between Mill and his predecessors is that they had no standard for morality other than the subjective standard (...)
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  36. Two Schools of Legal Idealism: A Positivist Introduction.Tony Ward - 2006 - Ratio Juris 19 (2):127-140.
    This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's approach, (...)
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  37. Morality and the Role-Differentiated Behaviour of Lawyers.Craig Taylor - 2004 - Australian Journal of Professional and Applied Ethics 6 (1).
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  38. Legal Obligation and Aesthetic Ideals: A Renewed Legal Positivist Theory of Law's Normativity.Keith C. Culver - 2001 - Ratio Juris 14 (2):176-211.
  39. Dissents in Courts of Last Resort: Tragic Choices?Alder John - 2000 - Oxford Journal of Legal Studies 20 (2):221-246.
    A democratic society does not embody a permanent and internally consistent set of values but attempts to accommodate disagreement between incommensurable values. One of the purposes of the law is to manage such disagreement by ensuring that disputes are settled in a way that advances the interests of stability without foreclosing options. In this respect the function of the formal dissenting judgment has been neglected in the English literature. By contrast there is a rich US literature which reveals an ambivalent (...)
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  40. Expressive Meaning, Race, and the Law.Andrew Altman - 1999 - Legal Theory 5 (1):75-99.
  41. Justifying Law: The Debate Over Foundations, Goals, and Methods.Raymond A. Belliotti - 1992 - Temple University Press.
    Author note: Raymond A. Belliotti is Professor of Philosophy at State University of New York at Fredonia.
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  42. Equal Respect and the Enforcement of Morality.Gerald Dworkin - 1990 - Social Philosophy and Policy 7 (2):180.
    In recent years, there has been renewed interest in the question of when, if ever, the state may use coercion to enforce majority views about what types of conduct are right or wrong, noble or base, decent or indecent. Such interest has been generated by both political and philosophibal pressures. In recent political history, controversies over such issues as abortion, homosexuality, pornography, textbooks in schools, new reproductive technologies such as surrogate parenting and in vitro fertilization, and faith healing have focused (...)
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  43. L'autorità della ragione e le ragioni dell'autorità. Il De utilitate credendi di S. Agostino.Maurizio Manzin - 1990 - Rivista Internazionale di Filosofia Del Diritto 67 (3):412-431.
    An analysis on St. Augustine's dialogue on the usefulness of faith (De utilitate credendi), where the distinction between authority and faith is critically discussed.
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  44. The Authority of the State.Leslie Green - 1988 - Clarendon Press.
    The modern state claims supreme authority over the lives of all its citizens. Drawing together political philosophy, jurisprudence, and public choice theory, this book forces the reader to reconsider some basic assumptions about the authority of the state. Various popular and influential theories - conventionalism, contractarianism, and communitarianism - are assessed by the author and found to fail. Leslie Green argues that only the consent of the governed can justify the state's claims to authority. While he denies that there is (...)
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  45. Legislative Duty and the Independence of Law.J. H. Bogart - 1987 - Law and Philosophy 6 (2):187 - 203.
    This essay considers the nature of duties incumbent on legislators in virtue of the office itself. I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral conditions into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality (...)
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  46. Punishment and the Subordination of Law to Morality.John H. Bogart - 1987 - Oxford Journal of Legal Studies 7 (3):421-443.
    Arguments over criminalization and decriminalization often focus on the moral status of conduct, which is thought to be especially important to determining the appropriate legal status of the conduct. If the conduct is not thought to be immoral (or seriously immoral}, that is enough to show that it does not properly fall within the realm of control of the criminal law. Arguments relying on such a strategy may be termed moralized arguments. This article focuses on a crucial element of that (...)
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  47. Can Government Regulate Technology?Edmund Byrne - 1983 - In Philosophy and Technology, Boston Studies in the Philosophy of Science, vol. 80. Dordrecht: pp. 17-33.
    Theorists and activists favor empowering government agencies to regulate technology; but an examination of such regulation by the US government exposes the inadequacy of any such regimen. Vested interests routinely interfere, e.g., keeping administration of polio vaccine in the hands of physicians, political infighting with regard to cancer research funding, advantages gained from noncompliance with military technology-constraining treaties. Public/private salary differences limit availability of the best talents for government positions, nor are truly appropriate regulatory policies easily arrived at in the (...)
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  48. Clear Cases.William Conklin - 1981 - University of Toronto Law Journal 31:231-248.
    Theorists of the legal process in common law countries have, in recent years, been preoccupied with hard cases. A hard case occurs where a legal rule or legal rules cannot determine a uniquely correct result when applied to given facts. This paper examines what theorists and law practitioners alike have believed to be a very different kind of case: the clear case. Practising lawyers assure us that clear cases occupy a large percentage of their case load. Professional law teachers design (...)
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