30 found

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  1.  1
    Replies to Critics.Amalia Amaya - 2017 - Ratio Juris 30 (4):529-548.
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  2.  3
    Canberra‐Style Analysis and Law: A Critique of Andrei Marmor's Farewell to Conceptual Analysis.Paweł Banaś & Filip Gołba - 2017 - Ratio Juris 30 (4):549-559.
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  3.  1
    The Arendtian Dread: Courts with Power.Or Bassok - 2017 - Ratio Juris 30 (4):417-432.
    Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue (...)
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  4. The Promise and Problems of Universal, General Theories of Contract Law.Brian H. Bix - 2017 - Ratio Juris 30 (4):391-402.
    There are a growing number of general theories of contract law and of other doctrinal areas. These theories are vastly ambitious in their aims. This article explores the nature of these claims, and the motivations for offering such theories, while considering the challenges to success. It is in the nature of theorizing to seek general categories, including doctrinal categories, and to try to discover insights that hold across those categories. However, differences both within a doctrinal area and across legal systems (...)
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  5.  1
    The Role and Value of Coherence in Theories of Legal Reasoning.Maksymilian Del Mar - 2017 - Ratio Juris 30 (4):491-506.
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  6. Intention in Criminal Law: The Challenge From Non‐Observational Knowledge.Bebhinn Donnelly‐Lazarov - 2017 - Ratio Juris 30 (4):451-470.
    Intention is at the heart of criminal law. If it is not the mens rea requirement found most often in offences, it is still the standard against which other grades of fault tend relatively to be judged. It has generated much controversy, as the crucial question, “Did the defendant intend X?” is resistant to clear answers. This paper argues that intention-questions are difficult because intention is not the thing law takes it to be: Importantly, contrary to law's assumptions, it is (...)
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  7.  4
    Legal Reasoning for Hedgehogs.Grant Lamond - 2017 - Ratio Juris 30 (4):507-521.
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  8. The Syntax of Principles: Genericity as a Logical Distinction Between Rules and Principles.Pedro Moniz Lopes - 2017 - Ratio Juris 30 (4):471-490.
    Much has been said about the logical difference between rules and principles, yet few authors have focused on the distinct logical connectives linking the normative conditions of both norms. I intend to demonstrate that principles, unlike rules, are norms whose antecedents are linguistically formulated in a generic fashion, and thus logically described as inclusive disjunctions. This core feature incorporates the relevance criteria of normative antecedents into the world of principles and also explains their aptitude to conflict with opposing norms, namely (...)
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  9. The Tapestry of Reason: Generality, Specificity and Legal Philosophy.William Lucy - 2017 - Ratio Juris 30 (4):522-528.
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  10. Civic Conscience, Selective Conscientious Objection and Lack of Choice.Yossi Nehushtan - 2017 - Ratio Juris 30 (4):433-450.
    Most democratic states tolerate, to various extents, conscientious objection. The same states tend not to tolerate acts of civil disobedience and what they perceive as selective conscientious objection. In this paper it is claimed that the dichotomy between civil disobedience and conscientious objection is often misguided; that the existence of a “civic conscience” makes it impossible to differentiate between conscientious objection and civil disobedience; and that there is no such thing as “selective” conscientious objection—or that classifying an objection as “selective” (...)
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  11.  4
    More Reasons Why Jurisprudence Is Not Legal Philosophy.Robertson Michael - 2017 - Ratio Juris 30 (4):403-416.
    It is generally assumed, without argument, that legal theory, legal philosophy, philosophy of law, and jurisprudence all mean the same thing. This paper rejects that assumption, and in particular the assumption that jurisprudence is the same thing as legal philosophy. This assumption has recently been challenged by Roger Cotterrell in his article “Why Jurisprudence Is Not Legal Philosophy,” and I seek to build on his arguments by adding insights found in the work of Stanley Fish.
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  12.  1
    A Rational Reconstruction of United Nations Human Rights Law.Gustavo Arosemena - 2017 - Ratio Juris 30 (3):372-386.
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  13.  3
    What Is the Opposite of Injustice?Heinze Eric - 2017 - Ratio Juris 30 (3):353-371.
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  14.  1
    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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  15. Law and Precaution in the European Risk Society: The Case of EU Environmental Policy.Joseph D. Mathis & Luigi D. A. Corrias - 2017 - Ratio Juris 30 (3):322-340.
    Ulrich Beck characterized the transition from modern to late modern society as a shift from an industrial to a “risk society.” Contemporary society is challenged by negative side effects of modernization, including the increasing and imminent threat of global climate change. This article will test the validity of conceivable prescriptive elements associated with this sociological theory. In doing so, it will focus on the most recent legal developments aimed at tackling climate change within the EU. This paper finds that the (...)
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  16.  2
    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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  17.  2
    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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  18.  13
    Some Remarks About Social Ontology and Law: An Interview with John R. Searle.Angela Condello & John R. Searle - 2017 - Ratio Juris 30 (2):226-231.
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  19.  2
    The “Discourse” of International Law and Humanitarian Intervention.Gustavo Gozzi - 2017 - Ratio Juris 30 (2):186-204.
    This essay analyzes the doctrine of “humanitarian intervention” in the frame of international law in the second half of nineteenth century and identifies the ground of legitimation of this intervention in the violation of presumed universal laws of humanity. The analysis emphasizes the transformation of the paradigm of “humanitarian intervention” into the current doctrine of the “responsibility to protect,” which under the rubric of “responsibility” legitimizes limitations on a state's sovereignty in cases where the state fails to guarantee the protection (...)
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  20.  2
    Luck Egalitarianism and the Rights of Immigrants.Nils Holtug - 2017 - Ratio Juris 30 (2):127-143.
    This article considers the implications of luck egalitarianism for a range of issues relating to international, South-North migration. More specifically, the implications of luck egalitarianism for the question of whether receiving societies are justified in extending to immigrants a less comprehensive set of rights than that enjoyed by other members of society are considered. First, are voluntary migrants responsible for their migration in such a way that receiving societies are justified in extending to them a less comprehensive set of rights (...)
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  21. Luck Egalitarianism and the Rights of Immigrants.Nils Holtug - 2017 - Ratio Juris 30 (2):127-143.
    This article considers the implications of luck egalitarianism for a range of issues relating to international, South-North migration. More specifically, the implications of luck egalitarianism for the question of whether receiving societies are justified in extending to immigrants a less comprehensive set of rights than that enjoyed by other members of society are considered. First, are voluntary migrants responsible for their migration in such a way that receiving societies are justified in extending to them a less comprehensive set of rights (...)
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  22.  3
    Legal Power: The Basic Definition.Lars Lindahl & David Reidhav - 2017 - Ratio Juris 30 (2):158-185.
    The concept of legal power is important in the law since, with regard to actions having legal effect, the “exercise of legal power” delimits those actions for which manifestation of intention to achieve a legal effect is essential for the effect to ensue. The paper proposes a definition that captures this feature of legal power and marks it off from “direct effect,” as well as from permissibility and practical ability to achieve the legal effect. This analysis of power is limited (...)
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  23.  7
    Immigration and Equal Ownership of the Earth.Kieran Oberman - 2017 - Ratio Juris 30 (2):144-157.
    A number of philosophers argue that the earth's resources belong to everyone equally. Suppose this is true. Does this entail that people have a right to migrate across borders? This article considers two models of egalitarian ownership and assesses their implications for immigration policy. The first is Equal Division, under which each person is granted an equal share of the value of the earth's natural resources. The second is Common Ownership, under which every person has the right to use the (...)
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  24.  3
    I Should Not Be a Free Rider, nor Am I Obligated to Obey.Luo Yizhong - 2017 - Ratio Juris 30 (2):205-225.
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  25.  2
    Theory of Custom, Dogmatics of Custom, Policy of Custom: On the Threefold Approach of Polish‐Russian Legal Realism.Edoardo Fittipaldi & Elena Timoshina - 2017 - Ratio Juris 30 (1):105-122.
    Proceeding from the insights of Petrażycki, Polish-Russian legal realists distinguished legal theory, legal dogmatics, and legal policy. Legal theory describes legal phenomena in a value-free way and formulates causal laws concerning those phenomena. Legal dogmatics and legal policy are, by contrast, value-laden sciences involving the subject's—i.e., the scientist's—own attitudes toward existing or imagined phenomena: Dogmatics evaluates behaviors based on the subject's adoption of given normative sources as binding, while legal policy evaluates the effects produced by given NSs based on causal (...)
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  26.  3
    From a Pluralism of Grounds to Proto‐Legal Relations: Accounting for the Grounds of Obligations of Justice.George Pavlakos - 2017 - Ratio Juris 30 (1):59-74.
    In this paper I discuss critically Mathias Risse's paper “Responsibility and Global Justice.” First, I argue that for Risse's pluralist account of the grounds of justice to hold together, there is need to presuppose a monist standpoint which ultimately contributes to grounding principles of justice. Second, I point out that Risse's understanding of obligations of accountability and justification is rather narrow in that it functions as an addendum to obligations of justice. Conversely, I will suggest that the obligation of accountability (...)
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  27.  1
    Responsibility and Global Justice.Mathias Risse - 2017 - Ratio Juris 30 (1):41-58.
    The two traditional ways of thinking about justice at the global level either limit the applicability of justice to states—the only distributions that can be just or unjust, strictly speaking, are within the state—or else extend it to all human beings. The view I defend in On Global Justice rejects both of these approaches. Instead, my view, and thus my attempt at meeting the aforementioned challenge, acknowledges the existence of multiple grounds of justice. My purpose here is to explain what (...)
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  28.  3
    Realism About the Nature of Law.Torben Spaak - 2017 - Ratio Juris 30 (1):75-104.
    Legal realism comes in two main versions, namely American legal realism and Scandinavian legal realism. In this article, I shall be concerned with the Scandinavian realists, who were naturalists and non-cognitivists, and who maintained that conceptual analysis is a central task of legal philosophers, and that such analysis must proceed in a naturalist, anti-metaphysical spirit. Specifically, I want to consider the commitment to ontological naturalism and non-cognitivism on the part of the Scandinavians and its implications for their view of the (...)
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  29.  5
    Necessary and Universal Truths About Law?Brian Z. Tamanaha - 2017 - Ratio Juris 30 (1):3-24.
    Prominent analytical jurisprudents assert that a theory of law consists of necessary, universal truths about the nature of law. This often-repeated claim, which has not been systematically established, is critically examined in this essay. I begin with the distinction between natural kinds and social artifacts, drawing on the philosophy of society to show that necessity claims about law require a fundamental reworking of basic understandings of ontology and epistemology, which legal philosophers have not undertaken. I show law is a poor (...)
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  30.  5
    Raz on Rights: Human Rights, Fundamental Rights, and Balancing.Zanghellini Aleardo - 2017 - Ratio Juris 30 (1):25-40.
    After clarifying the outlines of Raz's interest theory of rights and its relationship to aspects of the principles theory of rights, I consider how his recent observations on human rights manage to fit into the interest theory. I then address two questions. First, I elaborate on Raz's definition of morally fundamental rights, arguing that he is right in claiming that there are no such rights. I then show that the interest theory accommodates the notion that rights may take qualitative precedence (...)
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