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  1. On the Value of Constitutions and Judicial Review.Laura Valentini - 2017 - Criminal Law and Philosophy 11 (4):817-832.
    In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I (...)
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  • Taking Facts Seriously: Judicial Intervention in Public Health Controversies.Leticia Morales - 2015 - Public Health Ethics 8 (2):185-195.
    Courts play a key role in deciding on public health controversies, but the legitimacy of judicial intervention remains highly controversial. In this article I suggest that we need to carefully distinguish between different reasons for persistent disagreement in the domain of public health. Adjudicating between public health controversies rooted in factual disagreements allows us to investigate more closely the epistemic capacities of the judicial process. While the critics typically point out the lack of appropriate expertise of judges—in particular with respect (...)
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  • The Constitutionalist Debate: A Sceptical Take.Kyle Murray - unknown
    The constitutionalist debate - over where decision-making power in society should lie, and how it should be exercised - is one which is of fundamental importance not only in academia and constitutional theory, but in society generally. The main aim of this thesis is to critically examine the current debate from a particular, sceptical philosophical perspective - one which questions the possibility of convincingly defending moral premises. This controversial perspective, which goes to the heart of debates over moral realism, objectivity, (...)
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  • Democracy for the Future: A Conceptual Framework to Assess Institutional Reform.Wallimann-Helmer Ivo, Meyer Lukas & Burger Paul - 2016 - In .
    There seem to be good reasons that democratic institutions must be reformed in order to minimize the danger of unsustainable policy decisions infringing upon duties of intergenerational justice. This is why there exist a number of different proposals of how to reform democratic states in order to foster their duties towards the future. However, the debate lacks a systematic assessment of these suggested reforms within a coherent theoretical and norma-tive framework. This paper aims at developing such a framework. We suggest (...)
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  • The Supposed Right to a Democratic Say.Richard J. Arneson - unknown
    Democratic instrumentalism is the combination of two ideas. One is instrumentalism regarding political arrangements: the form of government that ought to be instituted and sustained in a political society is the one the consequences of whose operation would be better than those of any feasible alternative. The second idea is the claim that under modern conditions democratic political institutions would be best according to the instrumentalist norm and ought to be established. “Democratic instrumentalism” is not a catchy political slogan apt (...)
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  • Discourse, Principles, and the Problem of Law and Morality: Robert Alexy's Three Main Works.Martin Borowski - 2011 - Jurisprudence 2 (2):575-595.
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  • Participatory Democracy and Criminal Justice.Albert W. Dzur - 2012 - Criminal Law and Philosophy 6 (2):115-129.
    This essay asks if there is a role for an active public in ratcheting down the harsh politics of crime control in the United States and the United Kingdom that has led to increased use of the criminal law and greater severity in punishment. It considers two opposing answers offered by political and legal theorists and then begins to develop a participatory democratic framework for institutional reform.
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  • Iñigo González-Ricoy and Axel Gosseries : Institutions for Future Generations: Oxford University Press, 2016, Xv + 432 Pp, £65.00, ISBN: 978-0-19-874695-9. [REVIEW]Vuko Andrić - 2019 - Erkenntnis 84 (2):481-486.
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  • Evaluating 'Bioethical Approaches' to Human Rights.Alasdair Cochrane - 2012 - Ethical Theory and Moral Practice 15 (3):309 - 322.
    In recent years there has been growing scholarly interest in the relationship between bioethics and human rights. The majority of this work has proposed that the normative and institutional frameworks of human rights can usefully be employed to address those bioethical controversies that have a global reach: in particular, to the genetic modification of human beings, and to the issue of access to healthcare. In response, a number of critics have urged for a degree of caution about applying human rights (...)
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  • Evaluating ‘Bioethical Approaches’ to Human Rights.Alasdair Cochrane - 2012 - Ethical Theory and Moral Practice 15 (3):309-322.
    In recent years there has been growing scholarly interest in the relationship between bioethics and human rights. The majority of this work has proposed that the normative and institutional frameworks of human rights can usefully be employed to address those bioethical controversies that have a global reach: in particular, to the genetic modification of human beings, and to the issue of access to healthcare. In response, a number of critics have urged for a degree of caution about applying human rights (...)
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  • Dworkin’s Rights Conception of the Rule of Law in Criminal Law.Briain Jansen - 2017 - Netherlands Journal of Legal Philosophy 46 (2):160-176.
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  • Democracia, Derechos y Control Judicial: Versiones de Carlos Nino.Gustavo Maurino - 2015 - Análisis Filosófico 35 (2):243-263.
    El artículo analiza la justificación deliberativa de la revisión judicial a partir los originales aportes de la obra de Carlos Nino. Propone que el deliberativismo solo puede defender consistentemente un rol para la revisión judicial si esta se orienta radicalmente a las condiciones justificatorias y deliberativas de las decisiones, prácticas y políticas públicas, y no a la evaluación sustantiva de su consistencia con los derechos fundamentales, incluso los que sean considerados precondiciones democráticas. Argumenta que la versión más difundida de las (...)
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  • Montesquieu and the French Model of Separation of Powers.Marco Goldoni - 2013 - Jurisprudence 4 (1):20-47.
    Constitutional scholarship has put much emphasis on Montesquieu's principle of separation of powers as developed in the chapter of 'The Spirit of the Laws' devoted to the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu's masterpiece. The starting point of this paper is that there is an alternative, second model of separation powers based on the French monarchy of intermediate powers, which (...)
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  • Three Brief Comments on Rigid Constitutions and the Republican Tradition.Roberto Gargarella - 2014 - Ratio Juris 27 (4):516-520.
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  • Political Constitutionalism and the Question of Constitution‐Making.Marco Goldoni - 2014 - Ratio Juris 27 (3):387-408.
    The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...)
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  • Practical‐Political Jurisprudence and the Dual Nature of Law.Sarah Nason - 2013 - Ratio Juris 26 (3):430-455.
    Law contains many dualities, though most, if not all, of these dualities resolve into one complex puzzle: To what extent is law a matter of pure social facts, or moral value untethered to social facts? I argue that each concept of law reconciles this duality in a different way on the basis of certain beneficial consequences that might result. Instead of pitting concepts against one another universally, we should accept that the balance between law's social fact and moral value dimensions (...)
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  • Procedural Justice and the Law.Denise Meyerson & Catriona Mackenzie - 2018 - Philosophy Compass 13 (12):e12548.
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  • National Constitutional Courts, the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape.Maartje de Visser - 2014 - Human Rights Review 15 (1):39-51.
    This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that (...)
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  • Fundamental Rights: An Unsettling EU Competence.Elise Muir - 2014 - Human Rights Review 15 (1):25-37.
    For many years, fundamental rights were primarily protected in the European Union legal order in a negative way; EU institutions and Member States should not infringe fundamental rights when acting within the scope of EU law. However, since the Treaties of Amsterdam and Lisbon, the EU has gained greater competences to develop fundamental rights standards, and new mechanisms for the protection of these standards have emerged. Although these new instruments enhance the mandate of the EU regarding fundamental rights protection, they (...)
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  • Is Constitutional Rigidity the Problem? Democratic Legitimacy and the Last Word.José Luis Martí - 2014 - Ratio Juris 27 (4):550-558.
  • Resource Allocation Towards Socioeconomic Rights: Lessons From Domestic Courts.Waruguru Kaguongo - 2012 - Human Rights Review 13 (1):85-105.
    The question of resource allocation is particularly pertinent to the realisation of socioeconomic rights. Perceptions of the place of resource allocation impact the adjudication of these rights. This article departs from the premise that with the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural rights allowing individual communications and the establishment of the African Court on Human and Peoples’ Rights, there will be an increase in resource allocation questions for adjudication. The article interrogates the (...)
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  • “Constitution ”: Legitimacy and Legality in the Thought of John Rawls.Frank I. Michelman - 2018 - Ratio Juris 31 (4):379-395.
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  • Authority, Nationality, and Minorities.Alex Schwartz - 2015 - Ratio Juris 28 (3):354-371.
    Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political (...)
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