Law and Philosophy

ISSNs: 0167-5249, 1573-0522

14 found

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  1.  7
    Tort Law and Contractualism.Peter Chau - 2024 - Law and Philosophy 43 (4):393-413.
    How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops a new version (...)
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  2.  30
    Strong Political Liberalism.Henrik D. Kugelberg - 2024 - Law and Philosophy 43 (4):341-366.
    Public reason liberalism demands that political decisions be publicly justified to the citizens who are subjected to them. Much recent literature emphasises the differences between the two main interpretations of this requirement, justificatory and political liberalism. In this paper, I show that both views share structural democratic deficits. They fail to guarantee political autonomy, the expressive quality of law, and the justification to citizens, because they allow collective decisions made by incompletely theorised agreements. I argue that the result can only (...)
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  3.  7
    Keeping Hohfeld Simple.Mark McBride - 2024 - Law and Philosophy 43 (4):451-474.
    In this paper, I want to engage in, and move forward, a heated contemporary debate over certain normative positions within the well-known Hohfeldian table of legal relations – a table of dramatic explanatory power. After outlining the uncontroversial core of the table, I will leave the realm of uncontroversiality to enter the realm of controversy. I will enter, and stake out a stance in, a debate over the no-right position. Upon introduction of no-rights, a splinter occurs. There are two positions (...)
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  4.  15
    Why Metaphysics Matters: The Case of Property Law.Ben Ohavi - 2024 - Law and Philosophy 43 (4):367-391.
    Are property rights absolute? This paper attempts to reframe this question by drawing on insights from the field of social ontology. My main claim is that, even if we accept the most extreme view of the absoluteness of property rights, there are some non-normative conceptual limitations to these rights. The conceptual limitations are based on two claims about the nature of property rights and their subject matter, namely objects in the world: (1) property law regulates relations between persons through the (...)
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  5. The Personality of Public Authorities.Manish Oza - 2024 - Law and Philosophy 43 (4):415-450.
    This paper is about when associations, and in particular associations that are part of the state, should be treated as legal persons. I distinguish two forms of association – those that render coherent the agency of their members and those that are group agents – and argue that only the latter should be treated as persons. Following this, I discuss the conditions under which associations that are part of the state can legitimately be group agents.
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  6.  47
    Ambiguous Sovereignty: Political Judgment and the Limits of Law in Kant’s Doctrine of Right.Tom Bailey - 2024 - Law and Philosophy 43 (3):235-268.
    Kantian legalism is now the dominant scholarly interpretation of Kant and an important approach to legal and political philosophy in its own right. One notable feature is its construal of the relationship between law and politics decisively in law’s favour: Law subordinates politics. Political judgment is constrained by and only permissibly exercised through law. This paper opposes this subordination through a close analysis of an ambiguity in Kant’s conception of sovereignty. Understanding this ambiguity requires seeing that, for Kant, law cannot (...)
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  7.  29
    Public Ownership.Avihay Dorfman - 2024 - Law and Philosophy 43 (3):303-331.
    The two questions I seek to address in these pages are what is public property and why does it matter. Public property, like property more generally, is a powerful legal arrangement of allocating control and use rights with respect to resources. Unlike private property, public property does not establish normative powers with which private individuals can shape their practical affairs in and around social spheres such as housing, work, commerce, and worship. Rather, its distinctive value lies in extending autonomous agency (...)
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  8.  10
    Maximilian Kiener: Voluntary Consent Theory and Practice (Routledge, 2023), 120 Pounds cloth, 35.09 Ebook.Dennis Patterson - 2024 - Law and Philosophy 43 (3):333-340.
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  9.  16
    Paternalism at a Distance.Jonathan Turner - 2024 - Law and Philosophy 43 (3):269-302.
    I argue that the distance between state and citizen gives state paternalism a pro tanto advantage over paternalism between individuals. Pace Jonathan Quong, the state neither denies nor diminishes my moral status by acting on a justified negative judgment about my rational or volitional capacities. Nor does its failure to paternalize on the basis of detailed information about individuals constitute a source of disrespect. Rather, the less discriminating nature of general legislation both reduces the risk of social stigmatization and avoids (...)
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  10.  10
    Kotzen, Conditional Relevancy, and the Difficulties of Cross-Disciplinary Dialogue.Ronald J. Allen - 2024 - Law and Philosophy 43 (2):215-225.
    Forty years ago, Vaughn Ball demonstrated that the then received notion of conditional relevance served no useful purpose, as it would only come into effect if the probability of an element were 0.0. But, if the probability of an element were 0.0, a directed verdict would be in order and so once again conditional relevancy was doing no work. I extended that analysis to include the relationship between proffers of evidence and facts of consequence to demonstrate that the work that (...)
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  11.  21
    The Unilateral Authority Theory of Punishment.Richard Child - 2024 - Law and Philosophy 43 (2):187-213.
    It is frequently argued that wrongdoers forfeit, through their wrongdoing, their previously held claim rights against being punished. But this is a mistake. Wrongdoers do not forfeit their claim rights against being punished when they violate rights. They forfeit their _immunity_ to having their claim rights against being punished removed. The reason for this, I argue, is that when they violate rights, wrongdoers culpably disregard the authority of right-holders to negotiate the conditions under which it is permissible to interact with (...)
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  12.  13
    Reply to Allen.Matthew Kotzen - 2024 - Law and Philosophy 43 (2):227-233.
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  13.  51
    Legal Positivism and Naturalistic Explanation of Action.Dan Priel - 2024 - Law and Philosophy 43 (1):31-59.
    It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I show that the best-known (...)
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  14.  46
    Authority, Democracy, and Legislative Intent.Cosmin Vraciu - 2024 - Law and Philosophy 43 (1):89-130.
    On one account, courts ought to enforce legislative intent only when the public meaning of the text of the statute is unclear, and on another account, they should enforce the intent even when the public meaning is clear. In this paper, I argue against both approaches. My argument rests on considerations related to the moral authority of the democratically made law. More specifically, I argue that those considerations which make democratic law morally authoritative entail that judges ought to enforce the (...)
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