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  1. LA COHERENCIA EN LA ARGUMENTACIÓN JURÍDICA.Amalia Amaya - manuscript
  2. How to Identify Norms, Laws and Regulations That Facilitate Illicit Financial Flows and Related Financial Crimes.Tiago Cardao-Pito - forthcoming - Journal of Money Laundering Control.
    Purpose: Illicit financial flows are targeted by the United Nations’ (UN) Sustainable Development Goals (SDGs). However, these illicit flows are not entirely understood. Furthermore, they can benefit from economic norms, laws, and regulations that lack mechanisms to detect and penalize them. This paper investigates whether a recent test, the embezzler test, can be used to identify regulatory architectures that facilitate illicit financial flows and related financial crimes. -/- Design/methodology/approach: To develop a more advanced version of the embezzler test in terms (...)
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  3. Just Probabilities.Chad Lee-Stronach - forthcoming - Noûs.
    I defend the thesis that legal standards of proof are reducible to thresholds of probability. Many have rejected this thesis because it seems to entail that defendants can be found liable solely on the basis of statistical evidence. I argue that this inference is invalid. I do so by developing a view, called Legal Causalism, that combines Thomson's (1986) causal analysis of evidence with recent work in formal theories of causal inference. On this view, legal standards of proof can be (...)
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  4. Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - The Philosophical Quarterly.
    Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...)
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  5. Justice Kennedy's Jurisprudence of Dignity: From Sovereign Immunity to Gay Rights.Eric Scarffe - 2023 - American Journal of Legal History 4 (63):359–380.
    Although this article uses Obergefell v Hodges (2015) as its frame, it aims to bring out some distinctive features of Justice Kennedy’s jurisprudence of dignity more broadly. There are two reasons why such an investigation is important. The first is important to those interested in the legal case. Indeed, in Dobbs v Jackson Women’s Health (2022), the Court now argues that the relevant ‘test’ for determining whether a right is protected under the Due Process Clause is whether the right is (...)
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  6. Lowering the Boom: A Brief for Penal Leniency.Benjamin S. Yost - 2023 - Criminal Law and Philosophy 17 (2):251-270.
    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). 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 (...)
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  7. 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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  8. Fictions in legal reasoning.Manish Oza - 2022 - Dialogue 61 (3):451-463.
    A legal fiction is a knowingly false assumption that is given effect in a legal proceeding and that participants are not permitted to disprove. I offer a semantic pretence theory that shows how fiction-involving legal reasoning works.
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  9. 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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  10. 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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  11. A Paragon of Righteous Virtue.Robert Elliott Allinson - 2020 - In Heather L. Rivera & Robert Arp (eds.), Perry Mason and Philosophy: The Case of the Awesome Attorney. Open Court Press. pp. 11-27.
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  12. Impartiality and legal reasoning.Catherine Z. Elgin - 2020 - In Amalia Amaya & Maksymilian Del Mar (eds.), Virtue, Emotion and Imagination in Law and Legal Reasoning. Chicago: Hart Publishing.
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  13. Legal Obligation & Its Limits.Emad H. 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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  14. 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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  15. 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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  16. 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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  17. 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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  18. 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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  19. 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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  20. '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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  21. Limits of legality: the ethics of lawless judging.Jeffrey Brand-Ballard (ed.) - 2010 - New York, N.Y.: 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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  22. Larry Alexander and Emily Sherwin, Demystifying Legal Reasoning Reviewed by.Jacob M. Held - 2010 - Philosophy in Review 30 (2):74-76.
  23. Conflictos entre derechos constitucionales y maneras de resolverlos.José Juan Moreso - 2010 - Arbor 186 (745):821-832.
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  24. 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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  25. 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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  26. Justice in robes.Ronald Dworkin (ed.) - 2006 - Cambridge, Mass.: 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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  27. Adjudication and the Law.Timothy Endicott - 2005 - 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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  28. Should Like Cases Be Treated Alike?Andrei Marmor - 2005 - Legal Theory 11 (1):27-38.
  29. 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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  30. Prescriptive legal positivism: law, rights and democracy.Tom Campbell (ed.) - 2004 - Portland, Or.: 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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  31. Judicial Hegemony: Dworkin’s Freedom’s Law and the Spectrum of Constitutional Democracies.Brian Donohue - 2002 - Ratio Juris 15 (3):267-282.
    Ronald Dworkin’s Freedom’s Law offers a solution to a thorny problem in American constitutional law. He argues that the authority of the American Supreme Court to make the final determination on constitutional questions is consistent with democratic principles. In this paper, I try to show that his solution is unsatisfactory because it permits the possibility of a judicial usurpation of authority that is inconsistent with his characterization of democratic principles. Freedom’s Law is also a bold attempt to offer prescriptions for (...)
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  32. '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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  33. The Morality of Precedent in Law.Raphael A. Akanmidu - 2001 - Ratio Juris 14 (2):244-251.
  34. Practical Rules: When We Need Them and When We Don’t.Alan H. Goldman (ed.) - 2001 - New York: 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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  35. Judicial can’t.Scott J. Shapiro - 2001 - Noûs 35 (s1):530 - 557.
  36. 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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  37. 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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  38. 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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  39. 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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  40. Moral theory and legal reasoning.Scott Brewer (ed.) - 1998 - New York: 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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  41. Natural Law and Legal Reasoning.Ronald Dworkin - 1998 - In Scott Brewer (ed.), Moral Theory and Legal Reasoning. Garland.
  42. 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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  43. 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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  44. 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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  45. 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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  46. Overcoming law.Richard A. Posner (ed.) - 1995 - Cambridge: 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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  47. In Defense of Political Liberalism.Brian Barry - 1994 - Ratio Juris 7 (3):325-330.
  48. Role obligations.Michael O. Hardimon - 1994 - Journal of Philosophy 91 (7):333-363.
  49. Dyzenhaus on Positivism and Judicial Obligation.Michael Hartney - 1994 - Ratio Juris 7 (1):44-55.
  50. 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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