55 found

Year:

  1.  12
    Legitimate Actors of International Law-Making: Towards a Theory of International Democratic Representation.Samantha Besson & José Luis Martí - 2018 - Jurisprudence 9 (3):504-540.
    ABSTRACTThis article addresses the identity of the legitimate actors of international law-making from the perspective of democratic theory. It argues that both states or state-based international organisations, and civil society actors should be considered complementary legitimate actors of international law-making. Unlike previous accounts, our proposed model of representation, the Multiple Representation Model, is based on an expanded, democratic understanding of the principle of state participation: it is specifically designed to palliate the democratic deficits of more common versions of the Principle (...)
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  2.  2
    Formalising Formalism: Weinrib, Aristotle, and the Nature of Private Law.Michael Da Silva - 2018 - Jurisprudence 9 (3):486-503.
    ABSTRACTErnest Weinrib claims that the purpose of private law is to correct injustices between private parties and the use of private laws for consequentialist ends is a distortion. Weinrib’s primary argument highlights the distinctiveness of corrective justice and distributive justice. Weinrib claims to have an Aristotelian proof for their distinctiveness, but formalisation of and commentary on this aspect of his argument are lacking. This piece fills that gap in the literature. It provides purposely and strategically simple formal models of the (...)
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  3.  3
    ‘Simply in Virtue of Being Human’? A Critical Appraisal of a Human Rights Commonplace.Raffael N. Fasel - 2018 - Jurisprudence 9 (3):461-485.
    ABSTRACTIt has become a commonplace that human beings possess human rights ‘simply in virtue of being human’. Exactly what this formula entails and whether it is cogent remains largely obscure, however. To remedy this situation, the article distinguishes between an interpretation of the formula according to which ‘being human’ is a practical condition for holding human rights and a reading which takes ‘being human’ to be a moral reason for holding human rights. It argues that only under the second reading (...)
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  4.  14
    The Theories of Rights Debate.David Frydrych - 2018 - Jurisprudence 9 (3):566-588.
    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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  5. The Foundations of Conscientious Objection: Against Freedom and Autonomy.Yossi Nehushtan & John Danaher - 2018 - Jurisprudence 9 (3):541-565.
    According to the common view, conscientious objection is grounded in autonomy or in ‘freedom of conscience’ and is tolerated out of respect for the objector's autonomy. Emphasising freedom of conscience or autonomy as a central concept within the issue of conscientious objection implies that the conscientious objector should have an independent choice among alternative beliefs, positions or values. In this paper it is argued that: (a) it is not true that the typical conscientious objector has such a choice when they (...)
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  6.  2
    From Private Wrongs to Private Remedies: An Unbridgeable Gap?Diego M. Papayannis - 2018 - Jurisprudence 9 (3):597-606.
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  7.  4
    Reply: Relations of Right and Private Wrongs.Arthur Ripstein - 2018 - Jurisprudence 9 (3):614-625.
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  8.  1
    Democracy Laid Low by the Market.Alain Supiot - 2018 - Jurisprudence 9 (3):449-460.
    ABSTRACTFrom its origins in antiquity to the emergence of neoliberalism, democracy had always been thought of as a fragile institutional construct, comprising two complementary dimensions: an objective dimension, and a subjective one. Appeared in the 1970s, the Law and economic doctrine has undermined this bases of democracy by assimilating the enactment of laws to negotiation on a market, and reducing democracy to a ‘market of ideas’. The specific status of speech in the democratic area fades out, paving the way for (...)
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  9. La Forma Del Derecho.Federico Szczaranski - 2018 - Jurisprudence 9 (3):636-643.
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  10.  4
    Metaphilosophy of Law.Giovanni Tuzet - 2018 - Jurisprudence 9 (3):631-635.
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  11.  6
    Ripstein on Private Wrongs and Torts.Peter Vallentyne - 2018 - Jurisprudence 9 (3):589-596.
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  12.  1
    Means, Rights, and Opportunities: On Arthur Ripstein's Private Wrongs.Emmanuel Voyiakis - 2018 - Jurisprudence 9 (3):607-613.
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  13.  3
    In Pursuit of Pluralist Jurisprudence.Horatia Muir Watt - 2018 - Jurisprudence 9 (3):626-630.
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  14.  1
    Sparing Civilians.Alejandro Chehtman - 2018 - Jurisprudence 9 (2):431-437.
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  15. Labour Constitutionalism in a Genealogical Key.Emilios Christodoulidis - 2018 - Jurisprudence 9 (2):413-417.
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  16.  4
    Intellectual Property and Practical Reason.Eric R. Claeys - 2018 - Jurisprudence 9 (2):251-275.
    ABSTRACTIn scholarship on intellectual property, nonconsequentialist justifications for IP rights seem to suffer from one of two flaws. To some, such justifications seem indeterminate; they seem not to offer concrete guidance about how rights should be structured in practice. To others, such justifications seem dogmatic; they seem to mandate certain conclusions without letting decision makers consider the relevant context or consequences of different proposals to regulate IP. Both impressions neglect an important dimension of reasoning about rights—practical reason. In perfectionist theories (...)
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  17.  18
    A Realistic Theory of Law.Felipe Oliveira de Sousa - 2018 - Jurisprudence 9 (2):438-447.
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  18.  6
    Consequentialism and the Limits of Interpretation: Do the Ends Justify the Meanings?Donald L. Drakeman - 2018 - Jurisprudence 9 (2):300-318.
    ABSTRACTA recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This article argues that making consequentialism the primary basis for judicial decision-making runs counter to the long history of legal interpretation, is contrary to the insights of modern (...)
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  19.  1
    From the Labour Constitution to an Economic Sociology of Labour Law.Ruth Dukes - 2018 - Jurisprudence 9 (2):418-423.
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  20.  3
    Criminal Law’s Asymmetry.James Edwards - 2018 - Jurisprudence 9 (2):276-299.
    ABSTRACTCriminal law confers powers and grants permissions. In doing so it does not treat all alike. Some state officials are given powers and permissions that are much more extensive than those given to private persons. As a result, steps taken to achieve criminal justice are often serious crimes if taken by members of the latter group, while being perfectly lawful when taken by members of the former. My question here is what justifies this asymmetry. I consider two candidate explanations. One (...)
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  21.  5
    Efficiency and its Discontents.Richard Michael Fischl - 2018 - Jurisprudence 9 (2):408-412.
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  22.  2
    Bringing Capitalism Back In: What the Idea of the Labour Constitution Adds to Our Understanding of Labour Law.Judy Fudge - 2018 - Jurisprudence 9 (2):398-401.
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  23.  4
    How Law Affects Behaviour.Mark Greenberg - 2018 - Jurisprudence 9 (2):374-384.
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  24.  6
    Plato’s Legal Positivism in the Laws.Antony Hatzistavrou - 2018 - Jurisprudence 9 (2):209-235.
    ABSTRACTIn this paper I reassess the place of Plato’s Laws in the history of legal thought. The Laws has been traditionally considered to present a natural law theory of law. I argue instead that it presents a positivist account of the nature of law. Through analysis of some key passages of the Laws I argue that in that dialogue law is identified with conclusions of enkratic civic reason that may systematically conflict with precepts of substantive moral reason. I also argue (...)
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  25.  7
    Would Many People Obey Non-Coercive Law?Robert C. Hughes - 2018 - Jurisprudence 9 (2):361-367.
    In response to Frederick Schauer's book The Force of Law, I argue that the available evidence indicates that non-coercive law could influence many people's behavior. It may sometimes be best to forgo coercive enforcement of an important law.
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  26. On Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law.Karl Klare - 2018 - Jurisprudence 9 (2):402-407.
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  27.  4
    Everything in its Right Place.Grant Lamond - 2018 - Jurisprudence 9 (2):353-360.
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  28.  42
    Sanctioning.Lucas Miotto - 2018 - Jurisprudence 9 (2):236-250.
    Up until recently, most legal philosophers have argued that an action is a token of sanctioning if, and only if, (i) its performance brings about unwelcome consequences to the targets, and (ii) it is performed as a response to the breach of a duty. In this paper I take issue with this account. I first add some qualifications to it in order to present it in its most plausible form. After doing this, I advance a series of hypothetical cases which (...)
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  29.  1
    Carefully Stepping on the Academic Ridge: On Ruth Dukes, The Labour Constitution.Guy Mundlak - 2018 - Jurisprudence 9 (2):394-397.
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  30.  4
    Schauer on Coercion.Anna Pintore - 2018 - Jurisprudence 9 (2):345-352.
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  31.  35
    The Problem of Political Foundations in Carl Schmitt and Emmanuel Levinas.Elia R. G. Pusterla - 2018 - Jurisprudence 9 (2):424-430.
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  32.  7
    Response: A Continuing Conversation.Frederick Schauer - 2018 - Jurisprudence 9 (2):385-393.
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  33.  8
    Legal Positivism, Conventionalism, and the Normativity of Law.Torben Spaak - 2018 - Jurisprudence 9 (2):319-344.
    ABSTRACTThe aim of this article is to see whether we can account for the normativity of law within the framework of legal positivism and whether the idea of a social convention could be of help in this endeavour. I argue, inter alia, that we should distinguish between the problem of accounting for the normativity of law, conceived as a necessary property of law, and the problem of accounting for the use of normative legal language on the part of legal actors; (...)
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  34.  5
    Law’s Motivational Landscape.Rebecca Stone - 2018 - Jurisprudence 9 (2):368-373.
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  35.  7
    Why Politics Matters: A Review of Why Law Matters. [REVIEW]James Allan - 2018 - Jurisprudence 9 (1):132-137.
  36.  8
    Constitutional Rights and Judicial Review.T. R. S. Allan - 2018 - Jurisprudence 9 (1):138-145.
  37.  9
    The Virtue of Judicial Humility.Amalia Amaya - 2018 - Jurisprudence 9 (1):97-107.
    This paper articulates an egalitarian conception of judicial humility and justifies its value on the grounds that it importantly advances the legal and political ideal of fraternity. This account of the content and value of the virtue of humility stands in sharp contrast with the dominant view of judicial humility as deference or judicial restraint. The paper concludes by discussing some ways in which the account of humility and of its value provided in the paper furthers our understanding of the (...)
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  38.  20
    Introduction to ‘Virtue and Law’ Symposium.Amalia Amaya & Claudio Michelon - 2018 - Jurisprudence 9 (1):1-5.
    This short piece is the introduction to the Special Issue on ‘Virtue and the Law’ published by Jurisprudence in March 2019 (vol 9, issue 1). It explains the scope of the project and its place in the unfolding of virtue jurisprudence that has occurred in the past few decades, as well as introducing the topics addressed in the volume. In the first couple of pages the authors/editors outline a very brief genealogy of virtue jurisprudence and of its relation to both (...)
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  39.  9
    Plato on Law-Abidance and a Path to Natural Law.Julia Annas - 2018 - Jurisprudence 9 (1):19-30.
    In his later depiction of an ideal city, the Laws, Plato does not move from rule by experts to the rule of law, as often claimed, since law is also basic to the Republic. Rather, he now sees educated law-abidance as part of civic virtue: the laws are to be obeyed strictly, but also to be understood so that they are obeyed in the right spirit. Plato introduces original means to encourage this, and is led to make some moves in (...)
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  40.  16
    Can the Law Help Us to Be Moral?Kimberley Brownlee & Richard Child - 2018 - Jurisprudence 9 (1):31-46.
    The moral value of law can take many forms. It is instrumentally valuable when it coordinates interaction, provides moral advice and leadership, models the virtues, and motivates us to be moral. It is intrinsically valuable when it constitutes the collective moral conscience of citizens, embodies an ideal form of communal life, and expresses the moral integrity of the community. We analyse all of these potential values of law and assess their moral significance. In doing so, we are careful to distinguish (...)
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  41.  7
    Copyright, Authorship and the Public Domain: A Reply to Mark Rose and Niva Elkin-Koren.Abraham Drassinower - 2018 - Jurisprudence 9 (1):179-185.
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  42.  7
    Legal Reasoning, Good Citizens, and the Criminal Law.Antony Duff - 2018 - Jurisprudence 9 (1):120-131.
    I discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in the idea (...)
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  43.  3
    Does Discursive Authorship Justify User Rights?Niva Elkin-Koren - 2018 - Jurisprudence 9 (1):174-178.
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  44.  2
    Reply.Alon Harel - 2018 - Jurisprudence 9 (1):159-168.
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  45.  14
    Why the Rule of Law Matters.Martin Krygier - 2018 - Jurisprudence 9 (1):146-158.
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  46.  8
    Common Virtue and the Perspectival Imagination: Adam Smith and Common Law Reasoning.Maksymilian Del Mar - 2018 - Jurisprudence 9 (1):58-70.
    This paper considers the similarities between Adam Smith's device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smith's device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue (...)
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  47.  7
    Lawfulness and the Perception of Legal Salience.Claudio Michelon - 2018 - Jurisprudence 9 (1):47-57.
    The ability to identify all legally salient properties within a complex situation is a subjective trait necessarily possessed by a lawful person. This ability is better explained as a type of perception. The paper puts forward an account of the perception of legally salient properties in which perception affords a preliminary ordering of the total information received while allowing for the formation of a remainder that explains the peripheral legal perception experienced legal practitioners develop over time. After this account of (...)
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  48.  7
    Reconciling Virtues and Action-Guidance in Legal Adjudication.José Juan Moreso - 2018 - Jurisprudence 9 (1):88-96.
    In this paper, I intend to articulate an answer to the powerful particularist objection against the notion of moral and legal reasoning based on universal principles. I defend a particular way of specifying and contextualising universal principles. I claim that this account preserves legal and moral justification conceived as subsumption to legal and moral principles. I also try to show how virtues can be reconciled with this account, i.e. what is the right place for virtues in legal adjudication. To carry (...)
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  49.  5
    The Burdens of Proof: Discriminatory Power, Weight of Evidence, and Tenacity of Belief.Federico Picinali - 2018 - Jurisprudence 9 (1):192-201.
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  50.  26
    Legal Risk, Legal Evidence and the Arithmetic of Criminal Justice.Duncan Pritchard - 2018 - Jurisprudence 9 (1):108-119.
    It is argued that the standard way that the criminal justice debate regarding the permissible extent of wrongful convictions is cast is fundamentally flawed. In particular, it is claimed that there is an inherent danger in focussing our attention in this debate on different ways of measuring the probabilistic likelihood of wrongful conviction and then evaluating whether these probabilities are unacceptably high. This is because such probabilistic measures are clumsy ways of capturing the level of risk involved, to the extent (...)
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  51.  7
    History and Theory: Abraham Drassinower’s Quest for Coherence.Mark Rose - 2018 - Jurisprudence 9 (1):169-173.
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  52.  6
    Ignorance of Law: A Philosophical Inquiry. [REVIEW]Katrina L. Sifferd - 2018 - Jurisprudence 9 (1):186-191.
    Douglas Husak’s book is an intelligent, wide-ranging exploration of the legal principle ‘ignorance of law is no excuse’. This principle is one of the few pieces of legal doctrine known by many regular folks, along with the criminal standard of proof ‘beyond a reasonable doubt’. The traditional approach to the doctrine might be explained in this way: in some cases, ignorance of the law fails to excuse offenders from culpability because as a matter of policy we feel they ought to (...)
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  53.  7
    Virtue as the End of Law: An Aretaic Theory of Legislation.Lawrence B. Solum - 2018 - Jurisprudence 9 (1):6-18.
    ABSTRACTThis article investigates a virtue-centered approach to normative legal theory in the context of legislation. The core idea of such a theory is that the fundamental aim of law should be the promotion of human flourishing, where a flourishing human life is understood as a life of rational and social activities that express the human excellences. Law can promote flourishing in several ways. Because peace and prosperity are conducive to human flourishing, legislation should aim at the establishment and maintenance of (...)
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  54.  1
    Governing Rights.Dimitris Tsarapatsanis - 2018 - Jurisprudence 9 (1):202-208.
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  55.  3
    The Perceptive Judge.Iris van Domselaar - 2018 - Jurisprudence 9 (1):71-87.
    ABSTRACTThis article puts judicial perception at the centre of adjudication and of what makes a judge a good judge. It offers a philosophical and empiricist account of judicial perception. Judicial perception is presented as a special ethical, character-dependent skill that a judge needs in order to adequately attend and respond to the cases he is confronted with. In this account ‘thick concepts’ play a vital role. Throughout the text Ian McEwan’s novel The Children Act is used as an illustrative source.
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