Ratio Juris

ISSN: 0952-1917

13 found

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  1.  5
    The Comparative Account of Tort Reparation.Peter Chau - 2024 - Ratio Juris 37 (3):190-209.
    How can tort reparation be justified? Stephen Perry's comparative account relies on two ideas: (1) the loss arising from an injurious event should be distributed between the injurer and the victim rather than be borne by society at large; and (2) the distribution of loss between the injurer and the victim depends on a comparison of their “relative degree of fault.” Many believe that a strength of the comparative account lies in its ability to explain apportionment in contributory negligence cases. (...)
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  2.  10
    What Is the Ideal Dimension of Law?Lorenz Kaehler - 2024 - Ratio Juris 37 (3):210-229.
    Various authors have claimed that law has an ideal dimension owed to a claim to correctness. Against this thesis, this article argues that there are several ideal dimensions of law, namely, a moral, a legal, and an ontological one. All of them are independent of a claim to correctness. This claim can be understood in a strong and a weak way. Both versions are wanting because law claims neither that it is morally ideal nor that it is not grossly unjust. (...)
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  3.  7
    A New Opening for the Alternative Punishments Debate: Applying the Extended Mind Thesis.Kamil Mamak - 2024 - Ratio Juris 37 (3):248-268.
    The debate on alternative punishments appears to be stagnating. The impasse may be overcome if we consider humans from a different philosophical perspective. If we answer differently the question of who we are punishing, we open new possibilities regarding the question of how we punish. In particular, by applying the extended mind thesis we can arrive at interesting outcomes and reopen the debate on alternative punishments. According to this theory, external artifacts—such as smartphones—can be considered part of our minds. In (...)
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  4.  3
    Punishment Moralism.Shervin MirzaeiGhazi - 2024 - Ratio Juris 37 (3):230-247.
    In this paper, I try to reconcile the vulgar (normative) definition of punishment with the positivistic (purely descriptive) definition that separates the ethics of punishment from its definition—punishment positivism. I will argue that although the vulgar definition has critical issues, this does not mean that we should stop using normative concepts in the definition of punishment. I will attempt this reconciliation by considering one of the prime arguments in favour of punishment positivism—namely, definitional stop—and show why it doesn't work. I (...)
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  5.  23
    The Public Interest: Clarifying a Legal Concept.Eric R. Boot - 2024 - Ratio Juris 37 (2):110-129.
    Appeals to the public interest in law are commonplace, but typically made without clarifying what the public interest is and how it can be determined. In law, this has led to ad hoc applications of the public interest and, consequently, to “judicial idiosyncrasy,” posing a threat to legal certainty. This paper aims to remedy these problems by providing much‐needed conceptual clarification. It proposes that something is in the public interest if it increases the opportunities of the members of the public (...)
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  6.  16
    Was Hart an Inclusive Positivist?João Costa-Neto & Henrique Porto de Castro - 2024 - Ratio Juris 37 (2):130-147.
    After the publication of Hart's Concept of Law, Dworkin published his article “The Model of Rules,” dividing positivism into two varieties: inclusive and exclusive. Many theorists involved in this debate have characterized Hart's position as inclusivist, which we reject in this article. We argue that Hart, in the postscript to The Concept of Law, conceded a point to Dworkin in accepting that inclusive positivism would imply the existence of objective moral standing, adopting a more “neutral” position—compatible with inclusive and exclusive (...)
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  7.  22
    On the Exclusionary Scope of Razian Reasons.J. J. Moreso - 2024 - Ratio Juris 37 (2):148-160.
    This article attempts to illustrate the originality, depth, and farsightedness of Joseph Raz's conception, especially his idea that legal norms provide us with protected reasons to act, that is, with first-order reasons to behave as they prescribe, and with second-order, exclusionary reasons not to act for reasons against what they prescribe. But the article also highlights some aspects that raise doubts in my mind, especially with regard to the scope of these exclusionary reasons. This in two ways: by asking, on (...)
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  8.  19
    The Balancing Exercise and the Resolution of Rhetorical Antinomies in Judicial Decision‐Making.Anita Soboleva - 2024 - Ratio Juris 37 (2):161-183.
    The “balancing exercise” engaged in by judges in cases involving conflicts of rights can be analysed in rhetorical terms as a process for resolving rhetorical antinomies, where an antinomy is understood as a contradiction between two equally justifiable conclusions drawn from two or more equally applicable rules or principles. By investigating the possible responses to antinomies and identifying their types, we can better understand the process of judicial decision‐making and the ways which international and national courts justify their decisions.
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  9.  30
    The Two Faces of Binding Precedents: A Hohfeldian Look.María Beatriz Arriagada - 2024 - Ratio Juris 37 (1):25-47.
    Taking into account one of the meanings of the expression binding precedent and stipulating a definition for that meaning, this article aims to contribute to the concept's structural characterization. By this I mean the effort to identify the legal norms on which the existence and functioning of binding precedents depend and to show that these norms constitute a group of Hohfeldian legal relations between the courts whose precedents must be followed, the courts that must follow them, and the individuals whose (...)
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  10.  31
    Partial Reasons.Federico L. G. Faroldi - 2024 - Ratio Juris 37 (1):83-103.
    Partial reasons are considerations in favor of something that, taken individually, are not sufficient to establish an obligation. I consider the extent to which partial reasons are reasons, and why they cannot be reduced to or identified with pro tanto reasons. I lay out two approaches to the content of reasons, the flat theory and the structured theory. I argue that parts of reasons are not partial reasons, by showing that natural ways to represent parts of reasons in the flat (...)
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  11.  19
    Other People's Liberties.Andrew Halpin - 2024 - Ratio Juris 37 (1):2-24.
    When we seek a fuller understanding of individual liberty including its relational character, we confront a conundrum. The evident advantages of a single individual possessing liberty cannot be simply transferred to a greater number of beneficiaries. This conundrum is confronted with the resources of Hohfeld's analytical framework, developed specifically to elucidate the practical outworkings of interpersonal relations within the law. Attention is also paid to concerns expressed by von Wright over a representation of liberty (permission) within the resources of standard (...)
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  12.  17
    (Mis)Understanding Correlativity in Contractual Relations.Irina Sakharova - 2024 - Ratio Juris 37 (1):48-66.
    This article challenges the orthodox explanation of the normative connection between contracting parties: The promisee is regarded as having a superior position vis‐à‐vis the promisor, a position manifesting itself in the promisee's authority or control over the promisor's performance, and supported, in particular, by the promisee's supposed power, or at least some sort of ability falling short of a normative power, to “waive” the promisor's duty of performance. The article demonstrates that this explanation is rooted in a one‐sided, and ultimately (...)
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  13. The Incompatibility of Rawls's Justice as Fairness and His Just War Approach.Medina Vicente - 2024 - Ratio Juris 37 (1):67-82.
    A fundamental tension exists between Rawls's ideal Kantian conception of justice as fairness (JAF), which requires respecting people as ends, and his realistic non-Kantian consequentialist conception of a supreme emergency in a just war. By justifying the targeting of objectively innocent noncombatants during a supreme emergency exception, Rawls allows for treating them as means only. Hence, his appeal to a supreme emergency is insufficient to avoid this tension. First, since for him JAF is ideal but also practical, one might argue (...)
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