Philosophy of Law

Edited by Aness Webster (Nottingham University)
Assistant editors: Stephen Bero, Renee Bolinger
110 found
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1 — 50 / 110
  1. added 2018-05-20
    A Textualist Argument for a Living Constitution.A. J. Kreider - manuscript
    I think the basic intuition behind textualism correct – that the meaning of a law is fixed by referencing the meaning of its words according to the meaning common to the law’s ratifiers. However, even if true, it does not follow that interpretation of a law goes through the original ratifiers. Rather, a citizenry continually ratifies the laws to which it subjects itself, and as the meanings of those words change over time, so will those laws. Concerning, say, the U.S. (...)
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  2. added 2018-05-18
    The Historical Basis for the Understanding of a State in Modern Russia: A Case Study Based on Analysis of Components in the Concept of a State, Established Between the Fifteenth and Sixteenth Centuries.Natalia P. Koptseva & Alexandra A. Sitnikova - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-28.
    Using semiotic and historical methods, the article recovers the ancient Russian concept of ‘state’, which appeared and gained a foothold in the Russian social and cultural space in the fourteen and fifteenth centuries. In the authors’ opinions, this content has determined the basic features for understanding the State in modern post-Soviet Russian society to date. Accordingly, it is important to reassemble the main conceptual threads in the ‘state’ concept during the epoch of Ivan the Terrible, the Muscovite Tsar, the epoch (...)
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  3. added 2018-05-16
    Rights Correlativity.David Frydrych - forthcoming - In The Legacy of Wesley Hohfeld. Cambridge University Press.
    Professor Matthew Kramer offers a delimiting ‘criterion’ or test for his Interest Theory of legal claim-rights. The “Minimum Sufficiency” test is thought to be necessary because the Interest Theory is charged with being over-inclusive: it purportedly counts certain agents and entities as legal right-holders even though the law itself does not recognize them as such. This article nevertheless argues that Kramer’s test is inadequate and unnecessary. It proceeds as follows. Section II offers a brief explanation of the Interest and Will (...)
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  4. added 2018-05-16
    Down the Methodological Rabbit Hole.David Frydrych - 2017 - Crítica. Revista Hispanoamericana de Filosofía 49 (147):41-73.
    This article surveys methodological matters that shape, drive, and plague analytic legal philosophy. Section 2 briefly explicates conceptual analysis, analytic definitions, and family resemblance concepts. It also argues that central cases are used in more than one way. Section 3 presents criticisms of those concepts and methods, and suggests that some of these difficulties are due to the lack of a shared paradigm regarding a counterexample’s impact. Section 4 explains “meta- theoretical” desiderata. It contends that, to date, legal philosophical appeals (...)
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  5. added 2018-05-15
    Zoosemiotics 2.0.Pauline Delahaye - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-8.
    This paper discusses how major changes in methodology, ideology and the points of view of researchers have given linguistics a new opportunity to study animal semiotics and return to the “animal language” question. The article presents new linguistic perspectives from language theory but also from sociolinguistics, language development studies or the study of sign language. This paper shows how these perspective changes have scientifically modified the way linguists approach animal communication and cleared a path for new study fields such as (...)
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  6. added 2018-05-15
    Two Fallacies About Corporations.Philip Pettit - 2015 - In Subramanian Rangan (ed.), Performance and Progress: Essays on Capitalism, Business, and Society. Oxford University Press. pp. 379-394.
    One of the most important challenges for political theory is to identify the extent to which corporations should be facilitated and restricted in law. By way of background to that challenge, we need to develop a view about the nature and potential of corporations and corporate bodies in general. This chapter discusses two fallacies that we should avoid in this exercise. One, a claim popular among economists, that corporate bodies are not really agents at all. The other, a claim associated (...)
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  7. added 2018-05-14
    Subjectivist Perfectionism.Steven Wall - forthcoming - American Journal of Jurisprudence.
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  8. added 2018-05-14
    Staring Animals, Animal Staring: Semiotic Enquiry on Animal Enunciation.Francesco Marsciani - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-10.
    Can we speak about animal enunciation? More, can we learn something about the formal structure of the enunciation looking at the animal way to staring us and addressing to us with their glances? This contribution tries to describe some real cases of glances exchange between animals and humans in order to extract some reflections about the way in which we construct the role of the enunciator in the interspecific relationship. Are animals subjects in their relation with humans? And what “subject” (...)
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  9. added 2018-05-13
    Nulla Poena Sine Lege in Continental Criminal Law: Historical and Theoretical Analysis.Evgeny Tikhonravov - forthcoming - Criminal Law and Philosophy:1-10.
    Multiple viewpoints have been expressed regarding the principle nulla poena sine lege. Some scholars advocate the inviolability of this maxim because it safeguards personal freedom—an opportunity to do everything not prohibited by law. However, its critics assert that rigid adherence to the principle nulla poena sine lege may do more harm than good. They argue that the maxim, while prohibiting judges from punishing non-criminal acts, makes it impossible for courts to deter them in a timely manner, which, in certain cases, (...)
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  10. added 2018-05-11
    “Dreamers” and Others: Immigration Protests, Enforcement, and Civil Disobedience.Matthew J. Lister - 2018 - APA Newsletter on Hispanic/Latino Issues in Philosophy 17 (2):15-17.
    In this short paper I hope to use some ideas drawn from the theory and practice of civil disobedience to address one of the most difficult questions in immigration theory, one rarely addressed by philosophers or other theorists working on the topic: How should we respond to people who violate immigration law? I will start with what I take to be the easiest case for my approach—that of so-called “Dreamers”—unauthorized immigrants in the US who were brought to this country while (...)
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  11. added 2018-05-10
    Liberal Perfectionism, Moral Integrity, and Self-Respect.Paul Billingham & Anthony Taylor - forthcoming - American Journal of Jurisprudence.
    This paper presents a dilemma for Matthew Kramer’s view, as defended in his Liberalism with Excellence. A central aim of that book is to critique existing liberal perfectionist theories, which he labels “edificatory,” and to defend a different such theory, which he calls “aspirational.” Edificatory perfectionism holds that governments ought to promote citizens’ well-being directly by inducing them to live lives that are more wholesome, cultivated, or autonomous. Aspirational perfectionism, meanwhile, holds that governments ought to promote the conditions under which (...)
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  12. added 2018-05-10
    Reasonable Disagreement and the Neutralist Dilemma: Abortion and Circumcision in Matthew Kramer’s Liberalism with Excellence.Clare Chambers - forthcoming - American Journal of Jurisprudence.
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  13. added 2018-05-10
    Human Rights and the Forgotten Acts of Meaning in the Social Conventions of Conceptual Jurisprudence.William Conklin - 2014 - Metodo. International Studies in Phenomenology and Philosophy 2 (1):169-199.
    This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...)
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  14. added 2018-05-10
    Lon Fuller's Legal Structuralism.William Conklin - 2012 - In Bjarne Melkevik (ed.), Standing Tall Hommages a Csaba Varga. Budapest: Pazmany Press. pp. 97-121.
    Anglo-American general jurisprudence remains preoccupied with the relationship of legality to morality. This has especially been so in the re-reading of Lon Fuller’s theory of an implied morality in any law. More often than not, Fuller has been said to distinguish between the identity of a discrete rule and something called ‘morality’. In this reading of Fuller, however, insufficient attention to what is signified by ‘morality’. Such an implied morality has been understood in terms of deontological duties, the Good life, (...)
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  15. added 2018-05-10
    Derrida's Territorial Knowledge of Justice.William Conklin - 2012 - In Ruth Buchanan, Stewart Motha & Sunday Pahuja (eds.), Reading Modern Law: Critical Methodologies and Sovereign Formations. London: Rutledge. pp. 102-129.
    Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition (...)
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  16. added 2018-05-10
    Legal Modernity and Early Amerindian Laws.William Conklin - 1999 - Sociology of Law, Social Problems and Legal Policy:115-128.
    This essay claims that the violence characterizing the 20th century has been coloured by the clash of two very different senses of legal authority. These two senses of legal authority correspond with two very different contexts of civil violence: state secession and the violence characterizing a challenge to a state-centric legal authority. Conklin argues that the modern legal authority represents a quest for a source or foundation. Such a sense of legal authority, according to Conklin, clashes such a view with (...)
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  17. added 2018-05-10
    Sovereignty, Law and Majority: F.P.G. Guizot's Contribution.Massimo Mancini - 1998 - In Ralf Dreier - Carla Faralli - Wladik S. Nersessiants (ed.), Law and politics between nature and history. Bologna, Italy: CLUEB. pp. 143-151.
    For Guizot, legal sovereignty is a divine, absolute prerogative precluded from mankind. The best possible form of government is that based upon a representative system, since such a system continuosly shifts the attibution of power from one subject to another. Guizot's analysis, which also denies the modern democratic principle of the sovereignty of the will of the people, examines certain aspects common to all representative systems, such as the relationship between the elected and the electorate and between the majority and (...)
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  18. added 2018-05-10
    Invisible Author of Legal Authority.William Conklin - 1996 - Law and Critique 7 (2):173-192.
    The thrust of this paper addresses how the notion of an author relates to the authority of a law. Drawing from the legal thought of Hobbes, Bentham, and John Austin, the Paper offers a sense of the author as a distinct institutional source of the state. The Paper then addresses the more difficult legal theories in this context: those of HLA Hart, Ronald Dworkin and Hans Kelsen. The clue to the latter as well as the earlier theorists is a presupposed (...)
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  19. added 2018-05-10
    'Access to Justice' as Access to a Lawyer's Language.William Conklin - 1990 - Windsor Yearbook of Access to Justice 10:454-467.
    This essay claims that ‘access to justice’ has erroneously been assumed to be synonymous with invisible concepts instead of access to a lawyer’s language. The Paper outlines how a language concerns the relation between signifiers, better known as word-images, on the one hand, with signfieds, better known as concepts, on the other. The signifieds are universal, artificial and empty in content. Taking the Canadian Charter of Rights and Freedoms as an example, officials have assumed that Charter knowledge has involved signifieds (...)
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  20. added 2018-05-10
    Clear Cases.William Conklin - 1981 - University of Toronto Law Journal 31:231-248.
    Theorists of the legal process in common law countries have, in recent years, been preoccupied with hard cases. A hard case occurs where a legal rule or legal rules cannot determine a uniquely correct result when applied to given facts. This paper examines what theorists and law practitioners alike have believed to be a very different kind of case: the clear case. Practising lawyers assure us that clear cases occupy a large percentage of their case load. Professional law teachers design (...)
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  21. added 2018-05-09
    Against Capital Punishment.Benjamin S. Yost - forthcoming - New York: Oxford University Press.
  22. added 2018-05-05
    “Sealfie”, “Phoque You” and “Animism”: The Canadian Inuit Answer to the United-States Anti-Sealing Activism.Emiliano Battistini - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-34.
    A corpus made by online Canadian newspaper articles, coming from the archives of CBC News, Vice Canada and Huffington Post Canada, and related multimedia contents such us audio interviews, videos and especially links to images and comments shared on Twitter, allows us to reconstruct the debate on the seal hunt that involved Canadian media in 2014. In specific, we propose an interpretation of the pro-sealing discourse by Canadian Inuit and Newfoundlanders as an ironic and incisive answer to the serious United (...)
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  23. added 2018-05-04
    Hefa Quanyi : More Than a Problem of Translation. Linguistic Evidence of Lawfully Limited Rights in China.Michele Mannoni - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-18.
    This essay addresses the legal meanings of the phrase hefa quanyi, an important Chinese legal phrase that is frequently found in many Chinese laws and legal documents, and whose interpretation is claimed by various scholars to affect the alienability of people’s rights. It first challenges the existing translations of the phrase into Italian and English. It secondly delves into its history and etymology, studying the legal meanings that the phrase has had in the various texts of the Constitution of China. (...)
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  24. added 2018-05-04
    Normativism and Realism Within Contemporary Democratic Constitutionalism.Valerio Fabbrizi - 2018 - Philosophy and Social Criticism:1-21.
    The renewed interest on political realism can offer a new reading of the traditional dichotomy between normative and realist conception of constitutionalism. The purpose of this article is to analyse this renewed discussion, especially by focusing on the relationship between “political realism” and “political constitutionalism,” in the light of some theorists and authors—such as Richard Bellamy and Jeremy Waldron. After a brief introduction in which political realism will be discussed, especially through Bernard Williams’ reinterpretation, the article proposes a rereading of (...)
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  25. added 2018-05-04
    The Rights of Families and Children at the Border.Matthew J. Lister - 2018 - In Philosophical Foundations of Children's and Family Law. pp. 153-170.
    Family ties play a particular and distinctive role in immigration policy. Essentially every country allows ‘family-based immigration’ of some sorts, and family ties may have significant importance in many other areas of immigration policy as well, grounding ‘derivative’ rights to asylum, providing access to citizenship and other benefits at accelerated rates, and serving as a shield from the danger of removal or deportation. Furthermore, status as a child may provide certain benefits to irregular migrants or others without proper immigration standing (...)
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  26. added 2018-05-03
    Abortion, Marriage and Cognate Problems.Cécile Laborde - forthcoming - American Journal of Jurisprudence.
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  27. added 2018-05-03
    Two Rights of Free Speech.Andrei Marmor - 2018 - Ratio Juris 31 (2):139-159.
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  28. added 2018-05-03
    Overcoming Doctrinal School Thought: A Unifying Approach to Human Dignity.Philipp Gisbertz - 2018 - Ratio Juris 31 (2):196-207.
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  29. added 2018-05-03
    Time in Law's Domain.Gerald J. Postema - 2018 - Ratio Juris 31 (2):160-182.
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  30. added 2018-05-03
    Human Rights: Existential, Not Metaphysical.Massimo La Torre - 2018 - Ratio Juris 31 (2):183-195.
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  31. added 2018-05-03
    Ownership, Use, and Exclusivity: The Kantian Approach.Ernest J. Weinrib - 2018 - Ratio Juris 31 (2):123-138.
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  32. added 2018-05-03
    Toward a Theory of Reasonableness.Michele Mangini - 2018 - Ratio Juris 31 (2):208-230.
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  33. added 2018-05-03
    On The‐Law Property Ascriptions to the Facts.Flávio Manuel Póvoa De Lima - 2018 - Ratio Juris 31 (2):231-250.
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  34. added 2018-05-02
    The Contradiction of Crimmigation.José Jorge Mendoza - 2018 - APA Newsletter on Hispanic/Latino Issues in Philosophy 17 (2):6-9.
    This essay argues that we should find Crimmigration, which is the collapsing of immigration law with criminal law, morally problematic for three reasons. First, it denies those who are facing criminal penalties important constitutional protections. Second, it doubly punishes those who have already served their criminal sentence with an added punishment that should be considered cruel and unusual (i.e., indefinite imprisonment or exile). Third, when the tactics aimed at protecting and serving local communities get usurped by the federal government for (...)
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  35. added 2018-04-28
    On Some Difficulties of Putting in Dialogue Animal Rights with Anthropological Debates: A Historical View in Three Episodes.Alessandro Mancuso - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-29.
    In this paper, I try to identify the reasons why the dialogue between sociocultural anthropology and animal rights theories and movements continues to be difficult and scarce. At first sight this weakness of communication is surprising, if one looks at the amount of anthropological studies on human/animal relationships, in most cases pointing to how animals are considered in many cultures as non-human subjects or persons. For understanding the roots of this state of affairs, I compare the ways anthropologists and animal (...)
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  36. added 2018-04-27
    Review of Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World 608 Pp. $30.00. [REVIEW]Arthur Ripstein - forthcoming - Criminal Law and Philosophy:1-10.
    The thesis of The Internationalists is that the Kellogg Briand Pact of 1928 fundamentally reshaped the international legal order. By outlawing war, the Pact replaced one basic norm of international legal ordering with another. Hathaway and Shapiro present their argument in the form of a narrative, including biographical details about the central protagonists and vignettes about key meetings. They present it all with an eye not only to the importance of particular characters, but also to sheer coincidence. Underneath the sweeping (...)
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  37. added 2018-04-27
    The Theories of Rights Debate.David Frydrych - forthcoming - Jurisprudence:1-23.
    This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. It elucidates the traditional understanding of it as a dispute over how best to explain A RIGHT and clarifies the theories’ competing criteria for that concept. The rest of the article then shows why recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of competing explanations (...)
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  38. added 2018-04-26
    Recension de F. Schauer, Penser en Juriste. [REVIEW]Pierre Landou - 2018 - L'Oeil de Minerve:2018.
    Recension de la traduction française de l'ouvrage de F. Schauer, Penser en Juriste, Dalloz, 2018.
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  39. added 2018-04-25
    A Bilingual, Bicultural Approach to Detachment and in the Law: Tracing Impersonality and Interaction in English and Spanish Legal Op-Eds.María Ángeles Orts - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-24.
    The present research study carries out a contrastive analysis between two corpora of legal opinion columns as special types of genres, with a view to assess their opposing patterns of impersonality—authorial detachment—and attitude—emotion, judgment, appreciation, taking as a point of departure appraisal theory, or the interpretation of Halliday's Systemic-Functional Linguistics by the so-called Sydney School. The long-established perspective is that legal genres are highly impersonal; authoritative instruments representing an intentional exercise of elitist and exclusionary practices. However, the hypothesis embedded in (...)
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  40. added 2018-04-24
    Animal Biopolitics: How Animals Vote.Antonino Pennisi & Laura Giallongo - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-9.
    The social research about group decision-making in the human societies has received recent contributions from studies reached in the field of ethology and Game theory. Comparative data revealed the adoption of symbolic systems for vote expression and the consensus achievement in other social species. The wide diffusion of the voting procedure—as a sign of an ecological rationality– in species with different social organizations and cognitive levels, requires a new interpretation of the consensus issue assuming a new evolutionary biopolitical perspective, for (...)
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  41. added 2018-04-24
    Who Run the World? Cats: Cat Lovers, Cat Memes, and Cat Languages Across the Web.Mattia Thibault & Gabriele Marino - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-18.
    The paper provides an overview of the macro-isotopy “cat”, a totemic figure disputed between the elitist and often-esoteric subculture related to the origins of Internet and the standardized mass culture permeating social media. Due to its features, “cat” is a cultural unit which is easy to anthropomorphize and iconize, according to a variety of textual practices, including so-called Internet memes and one of the most interesting examples of sign proliferation to date: the creation of a whole new language based upon (...)
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  42. added 2018-04-24
    Provocateurs and Their Rights to Self-Defence.Lisa Hecht - forthcoming - Criminal Law and Philosophy:1-21.
    A provocateur does not pose a threat of harm. Hence, a forceful response to provocation is generally considered wrongful. And yet, a provocateur is often denied recourse to a self-defence justification if she defends herself against such a violent response. In recent work, Kimberly Ferzan argues that a provocateur forfeits defensive rights but this forfeiture cannot be explained in the same way as an aggressor’s rights forfeiture. Ordinarily, one forfeits the right not to be harmed and to self-defend against harm (...)
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  43. added 2018-04-24
    Why the Teleology of Marriage Matters to Law.Mark J. Boone - 2015 - The Evangelical Philosophical Society's Web Project for Philosophical Discussions of Marriage and Family Topics.
    What is at stake in the conversation over same-sex marriage is competing definitions of marriage. -/- One good argument for same-sex marriage depends on a definition that came to prominence after the sexual revolution. A different understanding of marriage was prominent in the nineteenth century, and this shows that Obergefell was wrongly decided, at least as far as Originalist understandings of law are concerned. -/- Accordingly, the nature, purpose, and function of marriage, and what people think of them, are important (...)
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  44. added 2018-04-22
    Confessions of a Quidnunc.George Sher - forthcoming - American Journal of Jurisprudence.
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  45. added 2018-04-22
    Constitutions, Rule Following, and the Crisis of Constraint.Thomas P. Crocker & Michael P. Hodges - 2018 - Legal Theory 24 (1):3-39.
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  46. added 2018-04-22
    In Defense of Procedural Rights : A Response to Wellman.David Enoch - 2018 - Legal Theory 24 (1):40-49.
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  47. added 2018-04-21
    Can Corporations Experience Duress? An Examination of Emotion-Based Excuses and Group Agents.Sylvia Rich - forthcoming - Criminal Law and Philosophy:1-15.
    This article considers the question of whether corporate entities can benefit from the criminal-law defence of duress. The excuse of duress is accorded in recognition of the defendant’s extreme fear of a threatened consequence, and it is unclear whether corporate entities—as distinct from their members—can experience fear. Many proponents of corporate rationality deny that corporations can have emotional states. I argue that corporations can experience the fear that is necessary to ground a claim of duress, but that the law should (...)
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  48. added 2018-04-21
    ‘Darker Than the Dungeon’: Music, Ambivalence, and the Carceral Subject.Chris Waller - 2018 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 31 (2):275-299.
    Music’s sanctioned role in the day-to-day running of the ‘late-modern’ prison is to ensure wellbeing and compliance of prisoners, with most regimes facilitating access to music through the form of radios, cd’s, and cassette players. As a result, music often comes tied to judgements by the regime about prisoners’ conduct, with incentive systems allowing the regime to confiscate earned possessions under certain conditions. In this way, the role of music in prison is often continuous with the mechanisms of carceral control, (...)
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  49. added 2018-04-19
    Crimes of Terrorism on Innocent Iraqis From to : A Semiotic Study.Ali Haif Abbas & Enas Naji Kadim - forthcoming - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique:1-20.
    Terrorist organisations have increased and widened in Iraq in particular and the world in general in recent years. People have suffered a lot from these terrorist organisations due to their thirst for killing innocent civilians. The study aims to convey the suffering of innocent Iraqis caused by terrorist acts to the world. In order to achieve the aim, the research adopted Barthes’s framework to analyse the selected photographs. The researchers have selected iconic photographs for the analysis. The photographs are taken (...)
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  50. added 2018-04-18
    Retributarianism: A New Individualization of Punishment.Hadar Dancig-Rosenberg & Netanel Dagan - forthcoming - Criminal Law and Philosophy:1-19.
    This article seeks to reveal, conceptualize, and analyze a trend in the development of the retributive theory of punishment since the beginning of the 21st century. We term this trend “retributarianism.” It is reflected in the emergence of retributive approaches that through expanding the concepts of censure and culpability extend the relevant time-frame for assessing the deserved punishment beyond the sentencing moment. These retributarian approaches are characterized by the individualization of retributivism. On one hand, retributarianism shares with classic retributivism the (...)
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