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  1. Lowering the Boom: A Brief for Penal Leniency.Benjamin S. Yost - forthcoming - Criminal Law and Philosophy:1-20.
    This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument’s keystone is the relatively uncontroversial Minimal Invasion Principle. MIP says that when more than one course of action satisfies a state’s legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP applies (...)
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  2. Legislation as Legal Interpretation: The Role of Legal Expertise and Political Representation.Attila Mráz - 2022 - In Francesco Ferraro & Silvia Zorzetto (eds.), Exploring the Province of Legislation: Theoretical and Empirical Perspectives in Legisprudence. Dordrecht: pp. 33-56.
    While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim to explore some implications of (...)
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  3. Alta Fixsler: Medico-Legal Paternalism in UK Paediatric Best Interest Decisions.Michal Pruski - 2022 - Issues in Law and Medicine 37 (1):81-93.
    The case of Alta Fixsler, where a judge ruled that withdrawing life sustaining care was in her best interest rather than transferring her to Israel, as her parents wanted, is the latest in a series of controversial paediatric best interest decisions. Using this case, as well as some other recent cases, I argue that the UK exhibits a high degree of medico-legal paternalism in best interest decisions, even though paternalism seems to be ubiquitously negatively perceived in medical ethics. Firstly, I (...)
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  4. How to Justify Mandatory Electoral Quotas: A Political Egalitarian Approach.Attila Mráz - 2021 - Legal Theory 27 (4):285-315.
    (OPEN ACCESS) This paper offers a novel substantive justification for mandatory electoral quotas—e.g., gender or racial quotas—and a new methodological approach to their justification. Substantively, I argue for a political egalitarian account of electoral quotas. Methodologically, based on this account and a political egalitarian grounding of political participatory rights, I offer an alternative to the External Restriction Approach to the justification of electoral quotas. The External Restriction Approach sees electoral quotas as at best justified restrictions on political participatory rights. I (...)
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  5. The Argument of Rightness as an Element of the Discretionary Power of the Administrative Judge.Bartosz Wojciechowski & Marek Zirk-Sadowski - 2020 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 33 (1):215-229.
    The article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity has one more purpose; namely, it allows for the process of decision-making—and not just (...)
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  6. Legal Obligation & Its Limits.Emad Atiq - 2019 - Law and Philosophy 38 (2):109-147.
    Judges decide cases by appeal to rules of general application they deem to be law. If a candidate rule resolves the case and is, ex ante and independently of the judge’s judgment, the law, then the judge has a legal obligation to declare it as such and follow it. That, at any rate, is conventional wisdom. Yet the principle is false – a rule’s being law or the judge’s believing it to be law is neither necessary nor even sufficient for (...)
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  7. 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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  8. Judicial Greatness and the Duties of a Judge.Omri Ben-Zvi - 2016 - Law and Philosophy 35 (6):615-654.
    This paper addresses the phenomenon of judicial greatness by developing a general concept of greatness and applying it to law. Under the view offered in the paper, greatness is connected to theoretical or methodological diversification. When applied to adjudication, this means that great judges are revered because they successfully make a prima facie case for their novel adjudicative methods. This is not a judicial duty but rather a voluntary project. However, once a judge succeeds in making such a prima facie (...)
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  9. An Argumentation Framework for Contested Cases of Statutory Interpretation.Fabrizio Macagno, Giovanni Sartor & Douglas Walton - 2016 - Artificial Intelligence and Law 24 (1):51-91.
    This paper proposes an argumentation-based procedure for legal interpretation, by reinterpreting the traditional canons of textual interpretation in terms of argumentation schemes, which are then classified, formalized, and represented through argument visualization and evaluation tools. The problem of statutory interpretation is framed as one of weighing contested interpretations as pro and con arguments. The paper builds an interpretation procedure by formulating a set of argumentation schemes that can be used to comparatively evaluate the types of arguments used in cases of (...)
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  10. Reasons of Law: Dworkin on the Legal Decision.Anthony R. Reeves - 2016 - Jurisprudence 7 (2):210-230.
    Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (...)
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  11. Constitutional Avoidance in Social Rights Adjudication.Farrah Ahmed & Tarunabh Khaitan - 2015 - Oxford Journal of Legal Studies 35 (3):607-625.
    In Judging Social Rights, Jeff King makes a powerful case for a limited, incrementalist, judicial approach to social rights adjudication. We argue that while King’s prescriptions are justified, he is too cautious about the applicability of his incrementalist prescriptions to legal systems that suffer systemic administrative inefficiencies. Using the Indian experience as a case study, we show that such caution is misplaced, and that at least one of King’s incrementalist strategies, constitutional avoidance, has particular salience for such jurisdictions.
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  12. A Republican Theory of Adjudication.Frank Lovett - 2015 - Res Publica 21 (1):1-18.
    In recent years there has been a revival of interest in civic republicanism. In light of this revival, it is interesting to consider what sort of theory of legal or judicial adjudication such a doctrine—centered on the value of promoting freedom from domination—would recommend. After discussing the importance of such a theory and clarifying its relationship to broader questions of institutional design, it is argued that theories of adjudication should be assessed according to three criteria: first, their contribution to the (...)
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  13. Feminizing Human Rights Adjudication: Feminist Method and the Proportionality Principle. [REVIEW]Harriet Samuels - 2013 - Feminist Legal Studies 21 (1):39-60.
    Proportionality is one of the most important adjudicatory tools, in human rights decision-making, primarily employed to balance rights and interests. Despite this there is very little feminist analysis of its use by the courts. This article discusses the doctrine of proportionality and considers its amenability to feminist legal methods. It relies on theories of deliberative democracy to argue that the proportionality test can be applied in a manner that facilitates a more “interactive universalism”, allows for greater participation in decision-making and (...)
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  14. 'Too Young to Sell Me Sex!?' Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker.Lucinda Vandervort - 2012 - Criminal Law Quarterly 58 (3/4):355-378.
    In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated judicial awareness (...)
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  15. Limits of Legality: The Ethics of Lawless Judging.Jeffrey Brand-Ballard (ed.) - 2010 - Oxford University Press.
    Introduction -- Practical reasons and judicial use of force -- Deviating from legal standards -- The legal duties of judges -- The normative classification of legal results -- Reasons to deviate -- Adherence rules -- Obeying adherence rules -- The judicial oath -- Legal duty and political obligation -- Systemic effects -- Agent-relative principles -- Optimal adherence rules -- Guidance rules -- Treating like cases alike -- Implementation -- Theoretical implications -- Conclusion.
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  16. Larry Alexander and Emily Sherwin, Demystifying Legal Reasoning Reviewed By.Jacob M. Held - 2010 - Philosophy in Review 30 (2):74-76.
  17. Conflictos Entre Derechos Constitucionales y Maneras de Resolverlos.José Juan Moreso - 2010 - Arbor 186 (745):821-832.
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  18. Demystifying Legal Reasoning.Larry Alexander & Emily Sherwin (eds.) - 2008 - Cambridge University Press.
    Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.
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  19. Adjudication and the Law.Timothy Endicott - 2007 - Oxford Journal of Legal Studies 27 (2):311-326.
    It can be compatible with justice and the rule of law for a court to impose new legal liabilities retrospectively on a defendant. But judges do not need to distinguish between imposing a new liability, and giving effect to a liability that the defendant had at the time of the events in dispute. The distinction is to be drawn by asking which of the court's reasons for decision the institutions of the legal system had already committed the courts to act (...)
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  20. Guidance and Constraint: The Action-Guiding Capacity of Neil MacCormick’s Theory of Legal Reasoning. [REVIEW]Torben Spaak - 2007 - Law and Philosophy 26 (4):343-376.
    Offers analysis of MacCormick's positivistic account of legal reasoning, partially in response to Dworkin's claim that positivism is inadequate as a theory of law because it cannot account for the nature of legal reasoning. Having analyzed MacCormick's theory and having applied it to some cases, we are now ready to evaluate it. My conclusion is that inmany cases MacCormick's theory can indeed give the judge the kind of concrete guidance he needs when with a hard case. The reason why MacCormick's (...)
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  21. Justice in Robes.Ronald Dworkin (ed.) - 2006 - Belknap Press.
    In the course of that critical study he discusses the work of many of the most influential lawyers and philosophers of the era, including Isaiah Berlin, Richard ...
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  22. Should Like Cases Be Treated Alike?Andrei Marmor - 2005 - Legal Theory 11 (1):27-38.
  23. A Synthetic Approach to Legal Adjudication.Samuel C. Rickless - 2005 - San Diego Law Review 42:519-532.
    When faced with a dispute concerning how a given legal provision (whether constitutional or statutory) applies to a particular set of facts, how should a judge proceed? It is commonplace to say that, in the first instance, she should look to the meanings of the words that constitute the provision itself. If she is lucky, then the relevant meanings are clear; and if the facts are not in dispute, then the resolution is obvious. Unfortunately.
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  24. Prescriptive Legal Positivism: Law, Rights and Democracy.Tom Campbell (ed.) - 2004 - Cavendish Publishing.
    Tom Campbell is well known for his distinctive contributions to legal and political philosophy over three decades. In emphasising the moral and political importance of taking a positivist approach to law and rights, he has challenged current academic orthodoxies and made a powerful case for regaining and retaining democratic control over the content and development of human rights. This collection of his essays reaches back to his pioneering work on socialist rights in the 1980s and forward from his seminal book, (...)
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  25. Judicial Hegemony: Dworkin's.Brian Donohue - 2002 - Ratio Juris 15 (3):267-282.
  26. 'International Meaning': Comity in Fundamental Rights Adjudication.Timothy A. O. Endicott - 2002 - International Journal of Refugee Studies 13:280-292.
    In fundamental rights adjudication, should judges defer to the judgment of other decision makers? How can they defer, without betraying the respect that judges ought to accord those rights? How can they refuse to defer, without betraying the respect that judges ought to accord to other decision makers? I argue that only principles of comity justify deference, and their reach is limited. Comity never forbids the judges to take and to act upon a different view of fundamental rights from that (...)
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  27. The Morality of Precedent in Law.Raphael A. Akanmidu - 2001 - Ratio Juris 14 (2):244-251.
  28. Practical Rules: When We Need Them and When We Don’T.Alan H. Goldman (ed.) - 2001 - Cambridge University Press.
    Rules proliferate; some are kept with a bureaucratic stringency bordering on the absurd, while others are manipulated and ignored in ways that injure our sense of justice. Under what conditions should we make exceptions to rules, and when should they be followed despite particular circumstances? The two dominant models in the literature on rules are the particularist account and that which sees the application of rules as normative. Taking a position that falls between these two extremes, Alan Goldman provides a (...)
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  29. Judicial Can’T.Scott J. Shapiro - 2001 - Noûs 35 (s1):530 - 557.
  30. Ethics for Adversaries: The Morality of Roles in Public and Professional Life.Arthur Isak Applbaum - 1999 - Princeton University Press.
    The adversary professions--law, business, and government, among others--typically claim a moral permission to violate persons in ways that, if not for the professional role, would be morally wrong. Lawyers advance bad ends and deceive, business managers exploit and despoil, public officials enforce unjust laws, and doctors keep confidences that, if disclosed, would prevent harm. Ethics for Adversaries is a philosophical inquiry into arguments that are offered to defend seemingly wrongful actions performed by those who occupy what Montaigne called "necessary offices."Applbaum (...)
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  31. Modest Judicial Restraint.Theodore M. Benditt - 1999 - Law and Philosophy 18 (3):243 - 270.
    The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit.
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  32. Modest Judicial Restraint.Theodore M. Benditt - 1999 - Law and Philosophy 18 (3):243-270.
    "The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit." [Is this just a statement of procedural legitimacy?] "To answer the question [of who assigns rights], courts must take a view as to the (...)
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  33. The Impossibility of the Rule of Law.Timothy A. O. Endicott - 1999 - Oxford Journal of Legal Studies 19 (1):1-18.
    No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I (...)
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  34. Moral Theory and Legal Reasoning.Scott Brewer (ed.) - 1998 - Garland.
    The articles in this volume consider at what stage of legal reasoning should a judge or lawyer make specifically moral judgments.
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  35. Natural Law and Legal Reasoning.Ronald Dworkin - 1998 - In Scott Brewer (ed.), Moral Theory and Legal Reasoning. Garland.
  36. Affirmative Duties and the Limits of Self-Sacrifice.Larry Alexander - 1996 - Law and Philosophy 15 (1):65 - 74.
    American criminal law reflects the absence of any general duty of Good Samaritanism. Nonetheless, there are some circumstances in which it imposes affirmative duties to aid others. In those circumstances, however, the duty to aid is canceled whenever aiding subjects the actor to a certain level of risk or sacrifice, a level that can be less than the risk or sacrifice faced by the beneficiary if not aided. In this article, I demonstrate that this approach to limiting affirmative duties to (...)
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  37. Legal Reasoning and Political Conflict.Cass R. Sunstein - 1996 - Oxford University Press USA.
    The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, (...)
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  38. Legal Reasoning and Political Conflict.Cass R. Sunstein (ed.) - 1996 - Oxford University Press USA.
    The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning and Political Conflict, (...)
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  39. External Justifications and Institutional Roles.A. John Simmons - 1996 - Journal of Philosophy 93 (1):28-36.
    In his paper "Role Obligations," Michael Hardimon defends an account of the nature and justification of institutional obligations that he takes to be clearly superior to the "standard" voluntarist view. Hardimon argues that this standard view presents a "misleading and distorted" picture of role obligations (and of morality generally); and in its best form he claims this view still "leaves out" of its understanding of even contractual role obligations an "absolutely vital factor". I argue against Hardimon that a related version (...)
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  40. Overcoming Law.Richard A. Posner (ed.) - 1995 - Harvard University Press.
    Throughout, the book is unified by Posner's distinctive stance, which is pragmatist in philosophy, economic in methodology, and liberal (in the sense of John ...
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  41. In Defense of Political Liberalism.Brian Barry - 1994 - Ratio Juris 7 (3):325-330.
  42. Role Obligations.Michael Hardimon - 1994 - Journal of Philosophy 91 (7):333-363.
    Argues that role obligations are not marginal, "that they are central to morality and should be taken seriously." "A 'role obligation' is a moral requirement, which attaches to an institutional role, whose content is fixed by the function of the role, and whose normative force flows from the role." Rejects what he calls the doctrine of perfect adequacy which holds that role obligations are both comprehensive and transparent. Although this may have been plausible at earlier times, it is clearly implausible (...)
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  43. Dyzenhaus on Positivism and Judicial Obligation.Michael Hartney - 1994 - Ratio Juris 7 (1):44-55.
  44. Legal Formalism and Instrumentalism - a Pathological Study.David Lyons - 1993 - In . Cambridge University Press.
    Compares formalism and instrumentalism and evaluates their general claims. “Part of what is meant by formalism is this: The law provides sufficient basis for deciding any case that arises. There are no “gaps” within the law, and there is but one sound legal decision for each case.” The formalist also holds that law is traceable to an authoritative source. “…sound legal decisions can be justified as the conclusions of valid deductive syllogisms. Because law is believed to be complete and univocal, (...)
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  45. Judging in Good Faith.Steven J. Burton - 1992 - Cambridge University Press.
    This book offers an original theory of adjudication focused on the ethics of judging in courts of law, and proposes two main theses. One is the good faith thesis, which defends the possibility of lawful judicial decisions even when judges exercise discretion. The other is the permissible discretion thesis, which defends the compatibility of judicial discretion and legal indeterminacy with the legitimacy of adjudication in a constitutional democracy. Together these two theses oppose both conservative theories that would restrict the scope (...)
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  46. Critical Legal Studies: A Liberal Critique.Andrew Altman (ed.) - 1990 - Princeton University Press.
    In this first book-length liberal reply to CLS, Andrew Altman systematically examines the philosophical underpinnings of the CLS movement and exposes the deficiencies in the major lines of the CLS argument against liberalism.
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  47. Should Lawyers Listen to Philosophers About Legal Ethics?M. B. E. Smith - 1990 - Law and Philosophy 9 (1):67 - 93.
    In the recent spate of philosophers' writing on legal ethics, most contend that lawyers' professional role exposes them to great risk of moral wrongdoing; and some even conclude that the role's demands inevitably corrupt lawyers' characters. In assessing their arguments, I take up three questions: (1) whether philosophers' training and experience give them authority to scold lawyers; (2) whether anything substantive has emerged in the scolding that lawyers are morally bound to take to heart; and (3) whether lawyers ought to (...)
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  48. Legal Reasoning as a Model for Moral Reasoning.Alan H. Goldman - 1989 - Law and Philosophy 8 (1):131 - 149.
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  49. Lawyers and Justice: An Ethical Study.David Luban - 1988 - Princeton University Press.
    This is a book about the ethics of the legal profession proceeding from one basic premise: our nation is so dependent on its lawyers that their ethical problems transform themselves into public difficulties.
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  50. Legal Reasoning as a Special Case of Moral Reasoning.Aleksander Peczenik - 1988 - Ratio Juris 1 (2):123-136.
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