Philosophy of Law

Edited by Aness Webster (Nottingham University)
Assistant editors: Stephen Bero, Renee Bolinger
125 found
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1 — 50 / 125
  1. added 2017-09-20
    The Schengen Information System and Data Retention. On Surveillance, Security and Legitimacy in the European Union.Elisa Orrù - 2017 - In Elisa Orrù, Maria Grazia Porcedda & Sebastian Weydner-Volkmann (eds.), Rethinking Surveillance and Control. Beyond the 'Security vs. Privacy' Debate. Baden-Baden: Nomos. pp. 115-136.
    As a technique of social control based on the collection of information, surveillance has been a central instrument of any administrative power since the modern era. Surveillance, however, can be carried out in different ways and these can provide important information on the basic features of a particular political system. Indeed, the introduction of surveillance measures has an impact on key relationships of a political system, such as liberty and security, autonomy and authority. When a political system is, like the (...)
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  2. added 2017-09-19
    Two Ways to Understand the Common Law.Peter Jaffey - forthcoming - Jurisprudence:1-26.
    I distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more closely reflected in the practices of the common law, and why the holistic approach is preferable as a method for finding and developing the law in adjudication. (...)
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  3. added 2017-09-19
    The Sense of Obligation.Veitch Scott - forthcoming - Jurisprudence:1-20.
    This article is based on the Inaugural Adam Smith Lecture in Jurisprudence given at the University of Glasgow in 2016. It asks this question: is it not an age of obligation that we live in as much as, if not more so than, an age of rights? To answer this it explores a number of different senses of obligation to be found across a range of social practices. After an overview of some of the main concerns of Smith’s work, it (...)
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  4. added 2017-09-17
    International Criminal Trials and the Circumstances of Justice.Murphy Colleen - forthcoming - Criminal Law and Philosophy:1-11.
    Transitional justice is broadly understood to refer to formal efforts to deal with past wrongs in the midst of a transition from an extended period of conflict or repression to democracy. In this paper, I consider the role of international criminal trials in transitional justice. I argue that such trials may contribute to transitional justice, but such contributions are conditional on two main factors. The first factor is time. The second factor is what other transitional justice responses are adopted domestically.
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  5. added 2017-09-16
    The Relational Conception of Practical Authority.N. P. Adams - forthcoming - Law and Philosophy.
    I argue for a new conception of practical authority based on an analysis of the relationship between authority and subject. Commands entail a demand for practical deference, which establishes a relationship of hierarchy and vulnerability that involves a variety of signals and commitments. In order for these signals and commitments to be justified, the subject must be under a preexisting duty, the authority’s commands must take precedence over the subject’s judgment regarding fulfillment of that duty, the authority must accept the (...)
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  6. added 2017-09-14
    Rethinking Surveillance and Control. Beyond the 'Security Versus Privacy' Debate.Elisa Orrù, Maria Grazia Porcedda & Sebastian Weydner-Volkmann (eds.) - 2017 - Baden-Baden: Nomos.
    This book is based on the premise that the trade-off between privacy and security is both unsound and con-ceals important aspects of surveillance and control. Accordingly, the authors analyse the symbiotic relati-onship between liberty and security, and the emptiness of both concepts when considered in isolation. They explore and contextualise different notions of risk, surveillance practices and the value of the rights to pri-vate life and data protection. Thereby, they show that surveillance and control neither necessarily attain security, nor always (...)
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  7. added 2017-09-13
    Review of Becker and Gibberman, On Trial: Law, Lawyers, and the Legal System. [REVIEW]Edmund Byrne - 1989 - Journal of Legal Education 39 (1):155-156.
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  8. added 2017-09-12
    The Nature of Punishment: Reply to Wringe.Nathan Hanna - forthcoming - Ethical Theory and Moral Practice:1-8.
    Many philosophers think that an agent punishes a subject only if the agent aims to harm the subject. Bill Wringe has recently argued against this claim. I show that his arguments fail.
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  9. added 2017-09-12
    The Right to Informed Consent from Georg Jellinek' Status Theory.Noelia Martinez-Doallo - 2016 - Ius Et Scientia 1 (3):206-216.
    Jellinek has defined “status” as the relationship between the State and the individual that qualifies to the last one. His theory distinguishes four types: passive or subiectionis, negative or libertatis, positive or civitatis and active or status of active citizenship. Besides controversies about its validity, it is aimed here to relate Jellinek’s contribution to the conception of informed consent developed by the Spanish Constitutional Court, as a duty to refrain for healthcare professionals (STC 37/2001, among others), i.e., a denial of (...)
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  10. added 2017-09-12
    Informed Consent as a Fundamental Right: Immunity or Self-determination?Noelia Martinez-Doallo - 2015 - Anuario da Facultade de Dereito da Universidade da Coruña 19:509-518.
    The Spanish Constitutional Court (STC 37/2011, 28th March, among others) had established the right to physical and moral integrity as constitutional foundation for informed consent (article 15 CE). Informed consent had been shaped by the Spanish Constitutional Court as an inhibition duty for physicians, that is to say, the denial of physician’s competence in Hohfeld’s wording. Since informed consent is defined as a negative or defensive right, understanding it as a legal freedom or a right to self-determination would require a (...)
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  11. added 2017-09-10
    The Adversary System: Who Needs It?Edmund Byrne - 1986 - In M. Davis and F. A. Elliston (ed.), Ethics and the Legal Profession. Buffalo, NY: Prometheus. pp. 204-215.
    -/- [Posted here is article as originally published (same title) in ALSA Forum VI (1982) pp. 1-17 plus rebuttal by Thomas D. Barton, pp. 18-22].
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  12. added 2017-09-09
    Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay.Federico Picinali - forthcoming - Criminal Law and Philosophy:1-20.
    Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook (...)
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  13. added 2017-09-08
    Strict Liability and the Paradoxes of Proportionality.Leo Katz & Alvaro Sandroni - forthcoming - Criminal Law and Philosophy:1-9.
    This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any such requirement (...)
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  14. added 2017-09-05
    ESTADO E GOVERNO NO PENSAMENTO DE MARSÍLIO DE PÁDUA: RAÍZES MEDIEVAIS DE UMA TEORIA MODERNA.J. L. Ames - 2003 - Ética and Filosofia Política 6 (2):0-0.
    This study brings light to the concepts of State and Government in the thought of Marsilio de Padua pointing out to profoundly modern institutions present in the reflection of this medieval philosopher. We attempt to show that Marsilio de Padua reflects based on Aristotle´s categories, but proposes a State and Government conception different from that common place of medieval politics as he insists on the need of the popular consent as a criterion of political legitimacy. -/- O estudo explicita os (...)
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  15. added 2017-09-04
    The Spell of Responsibility: Labor, Criminality, Philosophy.Frieder Vogelmann - forthcoming - London: Rowman & Littlefield International.
    Offering an alternative outlook on contemporary philosophy, this highly original book provides a conceptual history of responsibility within philosophy, including a critical analysis of the relation between philosophy and its social and political contexts.
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  16. added 2017-09-04
    Abortion and the Right to Not Be Pregnant.James Mahon - 2016 - In Philosophy and Political Engagement. London, UK: Palgrave Macmillan. pp. 57-77.
  17. added 2017-09-03
    The Law From Wergild to the Postmodern: Thinking of Restorative Justice.Chatterjee Subhasis Chattopadhyay - manuscript
    This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.
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  18. added 2017-09-03
    The Rule of Law in the Real World.Paul Gowder - 2016 - New York, USA: Cambridge University Press.
    In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, how they have sustained (...)
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  19. added 2017-09-02
    The Trial of Joseph Dotterweich: The Origins of the “Responsible Corporate Officer” Doctrine.Craig S. Lerner - forthcoming - Criminal Law and Philosophy:1-20.
    This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict liability (...)
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  20. added 2017-08-31
    The Strictness of Strict Liability.Michael S. Moore - forthcoming - Criminal Law and Philosophy:1-17.
    This article conceptualizes what strict liability is in the criminal law. Four properties are found to be individually necessary, only jointly sufficient, for there to be the kind of moral blameworthiness that must underlie any just punishment: prima facie wrongdoing, absence of justification, prima facie culpability, and absence of excuse. Whenever criminal liability is imposed without the presence of one or more of these properties, the liabuility is said to be strict.
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  21. added 2017-08-31
    When Does Evidence Suffice for Conviction?Martin Smith - forthcoming - Mind.
    There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea of statistical frequency. (...)
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  22. added 2017-08-31
    Is the Concept of Obligation Moralized?Kenneth Einar Himma - forthcoming - Law and Philosophy:1-25.
    Conceptual jurisprudence is concerned to explicate the concept of law and other concepts central to core legal practices, as we understand them. The centrality of obligation-talk to legal practice is obvious, as the very point of litigation is to resolve disputes regarding the obligations of the various parties. In this essay, I argue that the general concept of obligation – of which social, legal, and moral obligation are subtypes – includes a conceptual moral constraint. Just as only a very good (...)
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  23. added 2017-08-30
    Hart and Putnam on Rules and Paradigms: A Reply to Stavropoulos.Alexandre Müller Fonseca - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-25.
    Near the end of the last century, some legal philosophers adapted the so called causal theories of reference to solve internal problems in legal theory. Among those philosophers, Nicos Stavropoulos adjusted Hilary Putnam’s semantic externalism claiming it as a better philosophical view than legal positivism defended by Herbert Hart. According to him, what determines the correct application of a legal rule must be determined by the objects themselves. In that case, what determines the reference of legal terms is an issue (...)
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  24. added 2017-08-30
    Mother, Monster, Mrs, I: A Critical Evaluation of Gendered Naming Strategies in English Sentencing Remarks of Women Who Kill.Potts Amanda & Weare Siobhan - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-32.
    In this article, we take a novel approach to analysing English sentencing remarks in cases of women who kill. We apply computational, quantitative, and qualitative methods from corpus linguistics to analyse recurrent patterns in a collection of English Crown Court sentencing remarks from 2012 to 2015, where a female defendant was convicted of a homicide offence. We detail the ways in which women who kill are referred to by judges in the sentencing remarks, providing frequency information on pronominal, nominative, and (...)
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  25. added 2017-08-29
    Der Fluch des Verfahrens: Karl Kraus Und Die Akten Zum Fall Kerr.Katrin Trüstedt - 2016 - Modern Language Notes 131 (3): 701–23.
  26. added 2017-08-29
    Der Buchstabe und das Leben des Gesetzes in Shakespeares Kaufmann von Venedig.Katrin Trüstedt - 2013 - In Karl-Heinz Ladeur & Ino Augsberg (eds.), Talmudische Tradition und moderne Rechtstheorie. Kontexte und Perspektiven einer Begegnung. Tübingen: Mohr Siebeck. pp. 59–82..
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  27. added 2017-08-29
    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..
  28. added 2017-08-29
    Novelle der Stellvertretung: Kleists Michael Kohlhaas.Katrin Trüstedt - 2011 - Zeitschrift Für Deutsche Philologie 130:545–68.
  29. added 2017-08-29
    The Tragedy of Law in Shakespearean Romance.Katrin Trüstedt - 2007 - Law and Humanities 2:167–82..
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  30. added 2017-08-25
    Eliminative Killing and the Targeting of Noncombatants Comments on Seth Lazar’s Sparing Civilians.Alec Walen - forthcoming - Law and Philosophy:1-13.
    At the heart of Seth Lazar’s arguments in support of what he calls Moral Distinction – ‘In war, with rare exceptions, killing noncombatants is worse than killing combatants’ – is his treatment of eliminative and opportunistic killing. He adopts the standard line, that eliminative killing is easier to justify than opportunistic killing. And he acknowledges that there are various circumstances in which one might be able to justify killing noncombatants on eliminative grounds. Nonetheless, he relies on the notion of a (...)
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  31. added 2017-08-25
    Justice in Private: Beyond the Rawlsian Framework.Hanoch Dagan & Avihay Dorfman - forthcoming - Law and Philosophy:1-31.
    This article argues that contemporary accounts of justice miss a relational dimension of justice, which focuses on the terms private individuals’ interactions must meet for them to constitute relationships among equal, self-determining persons. The article develops the argument that the justice requirement to respect others as substantively free and equal individuals can sometimes be adequately discharged only if the relevant private persons are held responsible for its realization. It further elaborates the normative framework of relational justice to explain the generic (...)
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  32. added 2017-08-25
    A Complainant-Oriented Approach to Unconscionability and Contract Law.Nicolas Cornell - 2016 - University of Pennsylvania Law Review 164:1131-1175.
    This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. (...)
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  33. added 2017-08-25
    The Puzzle of the Beneficiary's Bargain.Nicolas Cornell - 2015 - Tulane Law Review 90:75-128.
    This Article describes a jurisprudential puzzle—what I call the puzzle of the beneficiary’s bargain—and contends that adequately resolving this puzzle will require significant revisions to basic premises of contract law. The puzzle arises when one party enters into two contracts requiring the same performance, and the promisee of the second contract is the third-party beneficiary of the first. For example, a taxi driver contracts with a woman to transport her parents from the airport next week, and then the driver separately (...)
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  34. added 2017-08-24
    Recent Developments.Jeffrey Ellsworth & Sandy Lamalle - 2017 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 30 (3):539-541.
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  35. added 2017-08-23
    Seeing Law: The Comic and Icon as Law.Kieran Tranter - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-4.
    This special issue examines how the comic and the icon prefigure forms of legality that are different to modern law. There is a primal seeing of law unmediated by reading, writing or possibly thinking. This introduction identifies the primacy of the eye, the emergence of visual jurisprudence and the transformations of law as a paper-based material practice to a digitally enabled activity.
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  36. added 2017-08-22
    "Contemporary Legal Conceptions of Property and Their Implications for Democracy".Carol C. Gould - 1980 - Journal of Philosophy 77 (11):716-729.
  37. added 2017-08-20
    Law, the Digital and Time: The Legal Emblems of Doctor Who.Kieran Tranter - 2017 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 30 (3):515-532.
    This article is about time. It is about time, or more precisely, about the absence of time in law’s digital future. It is also about time travelling and the seemingly ever-popular BBC science fiction television series Doctor Who. Further, it is about law’s timefullness; about law’s pictorial past and the ‘visual baroque’ of its chronological fused future. Ultimately, it is about a time paradox of seeing time run to a time when time runs ‘No More!’ This ‘timey-wimey’ article is in (...)
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  38. added 2017-08-18
    Copyright, Authorship and the Public Domain: A Reply to Mark Rose and Niva Elkin-Koren.Drassinower Abraham - forthcoming - Jurisprudence:1-7.
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  39. added 2017-08-18
    Can Government Regulate Technology?Edmund Byrne - 1983 - In Philosophy and Technology, Boston Studies in the Philosophy of Science, vol. 80. Dordrecht: pp. 17-33.
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  40. added 2017-08-15
    Constitutional Rights and Judicial Review.T. R. S. Allan - forthcoming - Jurisprudence:1-8.
  41. added 2017-08-15
    Why Politics Matters: A Review of Why Law Matters. [REVIEW]Allan James - forthcoming - Jurisprudence:1-6.
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  42. added 2017-08-15
    Brettschneider and ‘Democratic Persuasion’.Larry Alexander - 2017 - Jurisprudence 8 (2):370-379.
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  43. added 2017-08-14
    Strict Liability’s Criminogenic Effect.Paul H. Robinson - forthcoming - Criminal Law and Philosophy:1-16.
    It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments (...)
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  44. added 2017-08-11
    Public Reason as Highest Law.Gordon Ballingrud - forthcoming - Law and Philosophy:1-26.
    This essay addresses Rawls’ claim in Political Liberalism that the U.S. Supreme Court would have power to overturn an amendment repealing the First Amendment. I argue that the argument succeeds if one conceives of public reason as a theory of constitutional lawmaking. This theory is founded on Rawls’ unique contributions to the concept of public reason: the criterion of reciprocity, and the content, given by a family of reasonable conceptions of political justice. This conception of public reason imports substantive moral (...)
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  45. added 2017-08-11
    Gaps in the Law Fulfilled with Meaning: A Semiotic Approach for Decoding Gaps in Law.Liina Reisberg - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-13.
    Semiotics provides the tools for studying the process of decoding law, one of the most important tasks in the daily work of courts. The semiotic review of juridical interpretation and gap filling concludes that in juridical and semiotic methodology the same question—how a norm is interpreted—is answered from different perspectives. According to the semiotic model proposed in the current paper, juridical interpretation can be structured into three levels: intra-, inter- and supranormative sign-process. For legal theory semiotics can highlight the similarities (...)
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  46. added 2017-08-11
    A Rational Reconstruction of United Nations Human Rights Law.Gustavo Arosemena - 2017 - Ratio Juris 30 (3):372-386.
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  47. added 2017-08-11
    Risk, Precaution, Responsibility, and Equal Concern.Alexia Herwig & Marta Simoncini - 2017 - Ratio Juris 30 (3):259-272.
    Systemic risks are risks produced through interconnected non-wrongful actions of individuals, in the sense that an individual's action is a negligible cause of the risk. Due to scale effects of interaction, their consequences can be serious but they are also difficult to predict and assess via a risk assessment. Since we can have good reason to engage in the interconnected activities giving rise to systemic risk, we incur a concurrent collective responsibility to ensure that the risks are fairly distributed and (...)
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  48. added 2017-08-11
    Legal Arguments From Scholarly Authority.Shecaira Fábio Perin - 2017 - Ratio Juris 30 (3):305-321.
    Ordinary arguments from authority have the following structure: A says p; A is authoritative on such things; so p. Legal actors use such arguments whenever they ground their decisions on the sheer “say-so” of legislators, judges, scholars, expert witnesses, and so on. This paper focuses on arguments appealing to the authority of scholars, “doctrinal” or “dogmatic” legal scholars in particular. Appeal to doctrinal authority is a puzzling feature of legal argumentation. In what sense are doctrinal scholars “authorities”? Is p, as (...)
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  49. added 2017-08-11
    What Is the Opposite of Injustice?Heinze Eric - 2017 - Ratio Juris 30 (3):353-371.
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  50. added 2017-08-11
    When Trumps Clash: Dworkin and the Doctrine of Proportionality.Jacob Weinrib - 2017 - Ratio Juris 30 (3):341-352.
    If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper (...)
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