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  1. Semantic Originalism.Lawrence B. Solum - manuscript
    Semantic originalism is a theory of constitutional meaning that aims to disentangle the semantic, legal, and normative strands of debates in constitutional theory about the role of original meaning in constitutional interpretation and construction. This theory affirms four theses: (1) the fixation thesis, (2) the clause meaning thesis, (3) the contribution thesis, and (4) the fidelity thesis. -/- The fixation thesis claims that the semantic content of each constitutional provision is fixed at the time the provision is framed and ratified: (...)
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  2. Response Retributivism: Defending the Duty to Punish.Leora Dahan Katz - forthcoming - Law and Philosophy:1-31.
    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 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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  4. Morally Permissible Risk Imposition and Liability to Defensive Harm.Susanne Burri - 2020 - Law and Philosophy 39 (4):381-408.
    This paper examines whether an agent becomes liable to defensive harm by engaging in a morally permissible but foreseeably risk-imposing activity that subsequently threatens objectively unjustified harm. It first clarifies the notion of a foreseeably risk-imposing activity by proposing that an activity should count as foreseeably risk-imposing if an agent may morally permissibly perform it only if she abides by certain duties of care. Those who argue that engaging in such an activity can render an agent liable to defensive harm (...)
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  5. Are Dissenters Epistemically Arrogant?Tine Hindkjaer Madsen - 2020 - Criminal Law and Philosophy 15 (1):1-23.
    “One who elects to serve mankind by taking the law into his own hands thereby demonstrates his conviction that his own ability to determine policy is superior to democratic decision making. [Defendants’] professed unselfish motivation, rather than a justification, actually identifies a form of arrogance which organized society cannot tolerate.” Those were the words of Justice Harris L. Hartz at the sentencing hearing of three nuns convicted of trespassing and vandalizing government property to demonstrate against U.S. foreign policy. Citizens engaging (...)
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  6. Compromise and religious freedom.Brian Hutler - 2020 - Law and Philosophy 39 (2):177-202.
    Compromise is surprisingly common in the context of religious freedom. In Holt v. Hobbs, for example, a Muslim prison inmate challenged his prison’s no-beards policy on religious freedom grounds. He proposed, and was eventually granted, a compromise that allowed him to grow a half-inch beard rather than the full beard normally required by his beliefs. Some have argued that such a compromise is inconsistent with the purpose of religious freedom, which is to guard against interference with an individual’s religious practices. (...)
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  7. Promises, Rights, and Deontic Control.Crescente Molina - 2020 - Law and Philosophy 39 (4):409-426.
    This article argues that the notion of a promissory right captures a central feature of the morality of promising which cannot be explained by the notion of promissory obligation alone: the fact that the promisee acquires a full range of control over the promisor’s obligation. It defends two main claims. First, it argues that promissory rights are distinctively grounded in our interest in controlling others’ deontic world. Second, it proposes a version of the ‘Interest Theory’ of rights that incorporates our (...)
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  8. Contractualist Justification and the Direction of a Duty.Julian Jonker - 2019 - Legal Theory 25 (3):200-224.
    ABSTRACTTo whom is a duty owed? Contractualism answers with an interest theory of direction. As such, it faces three challenges. The Conceptual Challenge requires acknowledgment that a duty is conceptually distinct from an interest. The Extensional Challenge requires an account of cases in which one who is owed a duty does not take an interest in the duty, or does not take as much of an interest as someone who is not owed the duty. The Positivist Challenge requires explanation of (...)
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  9. Authority and Interest in the Theory of Right.Nieswandt Katharina - 2019 - In David Plunkett, Scott Shapiro & Kevin Toh (eds.), Legal Norms, Moral Norms: New Essays on Metaethics and Jurisprudence. Oxford: Oxford University Press. pp. 315-334.
    I suggest a new role for authority and interest in the theory of right: Rights can be explicated as sets of prohibitions, permissions and commands, and they must be justified by interests. I argue as follows: (1) The two dominant theories of right—“Will Theory” and “Interest Theory”—have certain standard problems. (2) These problems are systematic: Will Theory’s criterion of the ability to enforce a duty is either false or empty outside of its original legal context, whereas Interest Theory includes in (...)
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  10. Legal Metanormativity: Lessons for and From Constitutivist Accounts in the Philosophy of Law.Kathryn Lindeman - 2019 - In David Plunkett, Kevin Toh & Scott Shapiro (eds.), Dimensions of Normativity New Essays on Metaethics and Jurisprudence. Oxford University Press. pp. 87-104.
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  11. The Philosophers' Brief on Chimpanzee Personhood.Kristin Andrews, Gary Comstock, Gillian Crozier, Sue Donaldson, Andrew Fenton, Tyler John, L. Syd M. Johnson, Robert Jones, Will Kymlicka, Letitia Meynell, Nathan Nobis, David Pena-Guzman, James Rocha, Bernard Rollin, Jeff Sebo, Adam Shriver & Rebecca Walker - 2018 - Proposed Brief by Amici Curiae Philosophers in Support of the Petitioner-Appelllant Court of Appeals, State of New York,.
    In this brief, we argue that there is a diversity of ways in which humans (Homo sapiens) are ‘persons’ and there are no non-arbitrary conceptions of ‘personhood’ that can include all humans and exclude all nonhuman animals. To do so we describe and assess the four most prominent conceptions of ‘personhood’ that can be found in the rulings concerning Kiko and Tommy, with particular focus on the most recent decision, Nonhuman Rights Project, Inc v Lavery.
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  12. On (Not) Accepting the Punishment for Civil Disobedience.Piero Moraro - 2018 - Philosophical Quarterly 68 (272):503-520.
    Many believe that a citizen who engages in civil disobedience is not exempt from the sanctions that apply to standard law-breaking conduct. Since he is responsible for a deliberate breach of the law, he is also liable to punishment. Focusing on a conception of responsibility as answerability, I argue that a civil disobedient is responsible (i.e. answerable) to his fellows for the charges of wrongdoing, yet he is not liable to punishment merely for breaching the law. To support this claim, (...)
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  13. Does the Emolument Rule Exist for the President?Stephen Kershnar - 2017 - International Journal of Applied Philosophy 31 (1):31-43.
    In this article, I argue that with regard to the President, the Emoluments Clause is not law. I argue for this on the basis of two premises. First, if something is a law, then it has a legal remedy. Second, EC does not have a legal remedy. This premise rests on one or more of the following assumptions: EC does not apply to the President; if EC were to apply to the President, it does not provide a remedy; or, if (...)
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  14. How Is the Rule of Law a Limit on Power?David McIlroy - 2016 - Studies in Christian Ethics 29 (1):34-50.
    A commitment to the rule of law is a commitment to the governance of a society through the use of general or generalisable rules which are binding on both the subjects and the rulers. By giving due notice of the rules and of any changes to them, those who are subject to the law are protected from violence and enabled to act as agents. This is the essential contribution the rule of law makes to important human goods including freedom. Such (...)
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  15. Thomas Aquinas – Human Dignity and Conscience as a Basis for Restricting Legal Obligations.Marek Piechowiak - 2016 - Diametros 47:64-83.
    In contemporary positive law there are legal institutions, such as conscientious objection in the context of military service or “conscience clauses” in medical law, which for the sake of respect for judgments of conscience aim at restricting legal obligations. Such restrictions are postulated to protect human freedom in general. On the basis of Thomas Aquinas’ philosophy, it shall be argued that human dignity, understood as the existential perfection of a human being based on special unity, provides a foundation for imposing (...)
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  16. 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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  17. 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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  18. Toward an Ethics of Lobbying: Affirmative Obligations to Listen.Heidi Li Feldman - 2014 - Georgetown Journal of Law and Public Policy 12:493-504.
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  19. Breve excursus sul concetto di legge in Francisco Suárez.C. Faraco - 2013 - In Colonne Ofitiche. Percorsi di ermeneutica simbolica. Naples, Italy: pp. 73-84.
    Il breve saggio sul concetto di lex in Suárez evidenzia come la nota definizione di Tommaso d’Aquino, pur rappresentando un punto di riferimento imprescindibile nel dibattito giuridico, morale e teologico, possa esser riscritta. E l’innovazione del gesuita spagnolo si delinea in una definizione di legge, ove i termini intelletto e volontà sono posti in modo differente e il dialogo tra questi concetti generi una costruzione morale, che tenga conto della libertà della volontà dall’intelletto e da un ordo precostituito.
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  20. Obbligo politico e libertà nel pensiero di Francisco Suárez, FrancoAngeli, Milano, 2013.C. Faraco (ed.) - 2013 - FrancoAngeli.
    Se l’uomo è nato libero e non soggetto ad un suo pari, può obbligare un altro uomo senza cadere nella tirannia? È la domanda a cui Suárez cerca di dare risposta attraverso lo studio della legge, interpretata come una manifestazione dell’intelletto e della volontà, ovvero le due componenti che, in continuo ed armonico dialogo, sono la base di una nuova costruzione morale. Il gesuita riscrive il rapporto tra Creatore e creatura, da un lato, e il rapporto tra obbligo politico e (...)
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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. Review of Sovereignty’s Promise: The State as Fiduciary by Evan Fox-Decent. [REVIEW]Matthew Lister - 2012 - Ethics 123 (1):150-4.
    In Sovereignty’s Promise: The State as Fiduciary, Evan Fox-Decent uses the idea of fiduciary relationships to explain the legitimate exercise of governmental authority. He makes use of the idea of the state as a fiduciary for the people to ground an account of the duty to obey the law, to explain the proper relationships between colonial (or “settler”) societies and aboriginal populations, the role of agency discretion and judicial review in the administrative state, the rule of law, the relationship between (...)
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  23. Rethinking Political Obligation: Moral Principles, Communal Ties, Citizenship.Dorota Mokrosinska - 2012 - Palgrave-Macmillan.
    Why obey the state? Dorota Mokrosińska presents a fresh analysis of the most influential theories of political obligation and develops a novel approach to this foundational problem of political philosophy, an intriguing combination of the elements of natural duty and associative theories. The theory of political obligation developed in the book extends the scope of the contemporary debate on political obligation by arguing that political obligation can be binding even under the jurisdiction of unjust states. The arguments pursued in the (...)
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  24. Kant on Freedom and Obligation Under Law.Lena Halldenius - 2011 - Constellations 18 (2):170-189.
  25. Assessing Law's Claim to Authority.Bas van der Vossen - 2011 - Oxford Journal of Legal Studies 31 (3):481-501.
    The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique (...)
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  26. Natural Justice : An Aretaic Account of the Virtue of Lawfulness.Lawrence B. Solum - 2007 - In Colin Patrick Farrelly & Lawrence Solum (eds.), Virtue Jurisprudence. Palgrave-Macmillan.
  27. The Hybrid Nature of Promissory Obligation.Neal A. Tognazzini - 2007 - Philosophy and Public Affairs 35 (3):203–232.
    How do promissory obligations get created? Some have thought that the answer to this question must make reference to our social practice of promising. Recently, however, T.M. Scanlon has argued (in his book What We Owe to Each Other) for a pure ‘expectation view’ of promising, according to which promissory obligations arise as a result of our producing certain expectations in others. He formulates a principle of fidelity (Principle F) that tells us when one has gained an obligation due to (...)
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  28. How Kant's View of Perfect and Imperfect Duties Resolves an Alleged Moral Dilemma for Judges.Lawrence Masek - 2005 - Ratio Juris 18 (4):415-428.
    I clarify Kant's classification of duties and criticize the apocryphal tradition that, according to Kant, perfect duties trump imperfect duties. I then use Kant's view to argue that judges who believe that an action is immoral and should be illegal need not set aside their beliefs in order to comply with binding precedents that permit the action. The same view of morality that causes some people to oppose certain actions, including abortion, requires lower–court judges to comply with binding precedents. Therefore, (...)
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  29. The Moral Prima Facie Obligation to Obey the Law.Burleigh T. Wilkins - 1994 - Journal of Social Philosophy 25 (2):92-96.
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  30. How Not to Do Things with Rules.J. N. Adams - 1985 - Oxford Journal of Legal Studies 5 (3):446-452.
  31. Law as Rule and Principle: Problems of Legal Philosophy.Theodore M. Benditt - 1978 - Stanford University Press.
  32. Hohfeld's Arc.Mark Andrews - manuscript
    The eight jural relations defined by Wesley Hohfeld unite the many legal relationships that exist in American law. Together they are all part of a single structure, and this structure forms both a normal curve and a square of opposition. The two images express the process of legal analysis.
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