Results for 'rule of law'

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  1. The Rule of Law and Equality.Paul Gowder - 2013 - Law and Philosophy 32 (5):565-618.
    This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.
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  2.  37
    The Rule of Law in the Real World.Paul Gowder - 2016 - New York, USA: Cambridge University Press.
    In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, (...)
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  3. The Rule of Law and the Importance of Procedure.Jeremy Waldron - 2011 - Nomos 50:3-31.
    Proponents of the rule of law argue about whether that ideal should be conceived formalistically or in terms of substantive values. Formalistically, the rule of law is associated with principles like generality, clarity, prospectivity, consistency, etc. Substantively, it is associated with market values, with constitutional rights, and with freedom and human dignity. In this paper, I argue for a third layer of complexity: the procedural aspect of the rule of law; the aspects of rule-of-law requirements that (...)
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  4.  67
    The Rule of Law and its Limits.Andrei Marmor - 2004 - Law and Philosophy 23 (1):1-43.
    "[W]e must focus on what legalism, per se, means, and then ask why is it a good thing to have. Not less importantly, however, we must also realize that legalism can be excessive. Even if the rule of law is a good thing, too much of it may be bad. So the challenge for a theory of the rule of law is to articulate what the rule of law is, why is it good, and to what extent." (...)
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  5. Republican Freedom and the Rule of Law.Christian List - 2006 - Politics, Philosophy and Economics 5 (2):201-220.
    At the core of republican thought, on Philip Pettit’s account, lies the conception of freedom as non-domination, as opposed to freedom as noninterference in the liberal sense. I revisit the distinction between liberal and republican freedom and argue that republican freedom incorporates a particular rule-of-law requirement, whereas liberal freedom does not. Liberals may also endorse such a requirement, but not as part of their conception of freedom itself. I offer a formal analysis of this rule-of-law requirement and compare (...)
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  6.  83
    Objectivity and the Rule of Law.Matthew Kramer - 2007 - Cambridge University Press.
    What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry. As Kramer shows, objectivity and the rule of law are complicated phenomena, each comprising (...)
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  7.  28
    The Rule of Law in the Modern European State.David Boucher - 2005 - European Journal of Political Theory 4 (1):89-107.
    The idea of the rule of law is central in the European Union’s conception of itself, and stands as one of the most important political criteria of the enlargement process. Some clarification of this core concept is essential if it is to play a meaningful role in enlargement and, indeed, if we are able to make a judgement about whether the criterion is substantive or merely rhetorical. In other words, what purpose must the rule of law serve within (...)
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  8.  11
    The Rule of Law: Beyond Contestedness.Paul Burgess - 2017 - Jurisprudence 8 (3):480-500.
    In assessing compliance with the Rule of Law, the contested nature of the concept renders the use of a single theorist’s conception or, alternatively, the adoption of a hybrid conception open to criticism. There is no settled and practical way to determine Rule of Law non-compliance. It is argued that by looking behind the concept’s contestedness, Rule of Law non-compliance can be identified. The fundamental needs undergirding canonical conceptions are used to identify common elements of the (...) of Law. By taking this approach, two necessary Rule of Law elements are distilled: Comprehension; and, Procedural Pellucidity. As a result of their elemental nature, an inability to comply with the elements reflects a total inability to satisfy the Rule of Law regardless of the canonical conception preferred. The methodology suggested provides a practical – theory agnostic – way to identify Rule of Law non-compliance beyond the concept’s inherent contestedness. (shrink)
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  9. The Rule of Law in Contemporary Liberal Theory.Jeremy Waldron - 1989 - Ratio Juris 2 (1):79-96.
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  10. The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer.William E. Scheuerman (ed.) - 1996 - University of California Press.
    In the pathbreaking essays collected here, Neumann and Kirchheimer demonstrate that the death of democracy and the rise of fascism during the first half of the twentieth century suggest crucial lessons for contemporary political and legal scholars. The volume includes writings on constitutionalism, political freedom, Nazism, sovereignty, and both Nazi and liberal law. Most important, the Frankfurt authors point to the continuing efficacy of the rule of law as an instrument for regulating and restraining state authority, as well as (...)
     
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  11.  2
    Rhetoric and the Rule of Law: A Theory of Legal Reasoning.Neil MacCormick - 2005 - Oxford University Press.
    This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.
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  12.  83
    Toward an International Rule of Law: Distinguishing International Law-Breakers From Would-Be Law-Makers.Robert E. Goodin - 2005 - The Journal of Ethics 9 (1-2):225-246.
    An interesting fact about customary international law is that the only way you can propose an amendment to it is by breaking it. How can that be differentiated from plain law-breaking? What moral standards might apply to that sort of international conduct? I propose we use ones analogous to the ordinary standards for distinguishing civil disobedients from ordinary law-breakers: would-be law-makers, like civil disobedients, must break the law openly; they must accept the legal consequences of doing so; and they must (...)
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  13. The Rule of Law Political Theory and the Legal System in Modern Society.Franz Neumann - 1986
     
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  14.  37
    The Rule of Law and Its Predicament.Yasuo Hasebe - 2004 - Ratio Juris 17 (4):489-500.
    Purpose of this article is to assess the validity of the Razian conception of the rule of law by subjecting it to the acid test of Michel Troper's 'realist theory of interpretation'. The author argues that, in light of the Wittgensteinian view of rule-following, a serious indeterminacy can be seen as inherent in both this conception of the rule of law and Troper's theory of interpretation.
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  15. Is the Rule of Law an Essentially Contested Concept (in Florida)?Jeremy Waldron - 2002 - Law and Philosophy 21 (2):137-164.
    One of the remarkable features of the turmoil surrounding the counting and recounting of votes in the State of Florida in the 2000 US Presidential Election was the frequency with which "the Rule of Law" was invoked. Whether the antagonists in Florida knew it or not, they are in fact aspects of a venerable heritage of contestation that comes down to us as part and parcel of the Rule-of-Law tradition. The fact that "the Rule of Law" has (...)
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  16.  57
    The Rule of Law Beyond Thick and Thin.Peter Rijpkema - 2013 - Law and Philosophy 32 (6):793-816.
    In this paper it is argued that different understandings of the requirements of the Rule of Law can to a large extent be explained by the position taken with regard to two interrelated distinctions. On the one hand, the Rule of Law can be regarded as either a principle of law or as a principle of governance. On the other hand, the requirements of the Rule of Law can be regarded as defining either a minimum standard which (...)
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  17.  57
    Rhetoric and the Rule of Law.Neil MacCormick - 2001 - The Proceedings of the Twentieth World Congress of Philosophy 11:51-67.
    The thesis that propositions of law are intrinsically arguable is opposed by the antithesis that the Rule of Law is valued for the sake of legal certainty. The synthesis considers the insights of theories of rhetoric and proceduralist theories of practical reason, then locates the problem of indeterminacy of law in the context of the challengeable character of governmental action under free governments. This is not incompatible with, but required by the Rule of Law, which is misstated as (...)
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  18.  40
    Ethics and the Rule of Law.David Lyons - 1983 - Cambridge University Press.
    An introduction to the philosophy of law, which offers a modern and critical appraisal of all the main issues and problems. This has become a very active area in the last ten years, and one on which philosophers, legal practitioners and theorists and social scientists have tended to converge. The more abstract questions about the nature of law and its relationship to social norms and moral standards are now seen to be directly relevant to more practical and indeed pressing questions (...)
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  19.  17
    The Rule of Law and Human Virtue.Mehmet Tevfik Ozcan - 2008 - Proceedings of the Xxii World Congress of Philosophy 40:91-105.
    The rule of law is politico-legal realm of the modern society that it balances human gratifications, self-respect and prerequisites of legal order, after dissolution of the traditional society. Apart from our criticisms on the capitalist society there had been an expanding development of civic virtue of the human individual since early beginning of capitalism up to the 1980’ies when idea of self respect and the legal order relatively balanced. But, after neo-liberalism, the development is retrieving to the unbridled individualism, (...)
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  20. On the Rule of Law: History, Politics, Theory.Brian Z. Tamanaha - 2004 - Cambridge University Press.
    The rule of law is the most important political ideal today, yet there is much confusion about what it means and how it works. This 2004 book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory and liberal political systems. The author outlines the concerns (...)
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  21.  21
    On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe's Bailouts.C. Kilpatrick - 2015 - Oxford Journal of Legal Studies 35 (2):325-353.
    The norms governing EU sovereign debt conditionality in ‘debtor states’ significantly trouble the Rule of Law. My analysis addresses this central, yet to date ignored, Rule of Law challenge created by the EU economic crisis. I contrast my specific approach with two other Rule of Law strands in current EU scholarship and develop it by placing it within relevant broader literatures on rule of law and emergency. Drawing particularly on Fuller and Waldron, this produces a formal (...)
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  22.  81
    Is the Rule of Law Really Indifferent to Human Rights?Evan Fox-Decent - 2008 - Law and Philosophy 27 (6):533 - 581.
    A broad range of scholars contend that the rule of law is indifferent to human rights. I call this view the "no-rights thesis," and attempt to unsettle it. My argument draws on the work of Lon L. Fuller and begins with the idea that the fundamental justification of the rule of law rests on a juridical conception of human agency, one that finds expression in the legal and moral claims that can arise from human agency within the context (...)
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  23.  13
    The International Rule of Law: Law and the Limit of Politics.Ian Hurd - 2014 - Ethics and International Affairs 28 (1):39-51.
    The international rule of law is often seen as a centerpiece of the modern international order. It is routinely reaffirmed by governments, international organizations, scholars, and activists, who credit it with reducing the recourse to war, preserving human rights, and constraining the pursuit of state self-interests. It is commonly seen as supplanting coercion and power politics with a framework of mutual interests that is cemented by state consent.
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  24.  40
    The Impossibility of the Rule of Law.Timothy A. O. Endicott - 1999 - Oxford Journal of Legal Studies 19 (1):1-18.
    No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But (...)
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  25. The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence.Hock Lai Ho - 2016 - Criminal Law and Philosophy 10 (1):109-131.
    If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the (...) of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations. (shrink)
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  26.  41
    The Rule of Law as a Theater of Debate.Jeremy Waldron - 2004 - In Ronald Dworkin & Justine Burley (eds.), Dworkin and His Critics: With Replies by Dworkin. Blackwell. pp. 319--336.
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  27. The Politics of the Rule of Law.Joseph Raz - 1990 - Ratio Juris 3 (3):331-339.
    The article reviews several books on the rule of law, including "International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation," by Victor A. Peskin, "Civil War and the Rule of Law: Security, Development, Human Rights," edited by Agnes Hurwitz and Reyko Huang, and "Plunder: When the Rule of Law Is Illegal," by Ugo Mattei and Laura Nader.
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  28.  1
    The Rule of Law Deflated: Weber and Kelsen.Stephen P. Turner - 2016 - Lo Stato 6:97-115.
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  29. Rule of Law Abolitionism.Benjamin S. Yost - 2008 - Studies in Law, Politics, and Society.
  30.  26
    Drones and the International Rule of Law.Rosa Brooks - 2014 - Ethics and International Affairs 28 (1):83-103.
    The international rule of law hinges on the existence of a shared lexicon accepted by states and other actors in the international system. With no independent judicial system capable of determining the meaning of words and concepts, states must develop shared interpretations of the law and the concepts and terms it relies on, and be willing to abide by those shared interpretations. When such shared interpretations exist, key aspects of the rule of law can be present even in (...)
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  31. Political Theory and the Rule of Law.Judith N. Shklar - 1987 - In Allan Hutchinson & Patrick J. Monahan (eds.), The rule of law: Ideal or ideology. pp. 1-16.
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  32.  5
    Bioethics and the Rule of Law: A Classical Liberal Theory.Michael Brodrick - 2020 - Journal of Medicine and Philosophy 45 (3):277-296.
    Heated debates over healthcare policy in the United States point to the need for a legal framework that can sustain both moral diversity and peaceful cooperation. It is argued that the classical liberal Rule of Law, with its foundation in the ethical principle of permission, is such a framework. The paper shows to what extent the current healthcare policy landscape in the United States diverges from the rule of law and suggests how the current framework could be modified (...)
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  33.  37
    Is the Rule of Law an Essentially Contested Concept ?Jeremy Waldron - 2002 - Law and Philosophy 21 (2):137-164.
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  34.  85
    The Rule of Law at Century's End.William E. Scheuerman - 1997 - Political Theory 25 (5):740-760.
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  35.  29
    Hobbes on the International Rule of Law.David Dyzenhaus - 2014 - Ethics and International Affairs 28 (1):53-64.
    Perhaps the most influential passage on the rule of law in international law comes from chapter 13 of Thomas Hobbes's Leviathan. In the course of describing the miserable condition of mankind in the state of nature, Hobbes remarks to readers who might be skeptical that such a state ever existed that they need only look to international relations—the relations between independent states—to observe one: But though there had never been any time, wherein particular men were in a condition of (...)
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  36.  25
    Profiling and the Rule of Law.Mireille Hildebrandt - 2008 - Identity in the Information Society 1 (1):55-70.
    Both corporate and global governance seem to demand increasingly sophisticated means for identification. Supposedly justified by an appeal to security threats, fraud and abuse, citizens are screened, located, detected and their data stored, aggregated and analysed. At the same time potential customers are profiled to detect their habits and preferences in order to provide for targeted services. Both industry and the European Commission are investing huge sums of money into what they call Ambient Intelligence and the creation of an ‘Internet (...)
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  37.  19
    Positivism, Idealism and the Rule of Law.Sean Coyle - 2006 - Oxford Journal of Legal Studies 26 (2):257-288.
    The modern lawyer operates within a conception of law as a body of rules. To confront the law of contract, of torts, or of property, is to familiarize oneself with an intricate set of rules. Such familiarity is not yet legal scholarship, much less legal practice. For in order to use the rules as lawyers use them, the rules must be contemplated and considered, and the relationship between the different rules must be understood. Because the intellectual processes involved in handling (...)
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  38.  7
    The Rule of Law in the Arab World: Courts in Egypt and the Gulf.Byron Cannon & Nathan J. Brown - 1999 - Journal of the American Oriental Society 119 (4):709.
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  39.  40
    The Impossibility of the Rule of Law.Tao Endicott - 1999 - Oxford Journal of Legal Studies 19 (1):1-18.
    No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But (...)
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  40. The Structure of Liberty: Justice and the Rule of Law.Randy E. Barnett - 1998 - Oxford University Press.
    This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.
     
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  41.  39
    Why the Rule of Law Matters.Martin Krygier - 2018 - Jurisprudence 9 (1):146-158.
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  42.  78
    Mitochondrial Replacement Techniques and Mexico’s Rule of Law: On the Legality of the First Maternal Spindle Transfer Case.César Palacios-González - 2017 - Journal of Law and the Biosciences 4 (1):50–69.
    News about the first baby born after a mitochondrial replacement technique (MRT; specifically maternal spindle transfer) broke on September 27, 2016 and, in a matter of hours, went global. Of special interest was the fact that the mitochondrial replacement procedure happened in Mexico. One of the scientists behind this world first was quoted as having said that he and his team went to Mexico to carry out the procedure because, in Mexico, there are no rules. In this paper, we explore (...)
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  43. [Book Review] the Structure of Liberty, Justice and the Rule of Law. [REVIEW]Randy E. Barnett - 2000 - Criminal Justice Ethics 19 (2):131-135.
    This provocative book outlines a powerful and original theory of liberty structured by the liberal conception of justice and the rule of law. Drawing on insights from philosophy, political theory, economics, and law, he shows how this new conception of liberty can confront, and solve, the central societal problems of knowledge, interest, and power.
     
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  44. Lon Fuller and the Moral Value of the Rule of Law.Colleen Murphy - 2004 - Law and Philosophy 24 (3):239-262.
    It is often argued that the rule of law is only instrumentally morally valuable, valuable when and to the extent that a legal system is used to purse morally valuable ends. In this paper, I defend Lon Fuller’s view that the rule of law has conditional non-instrumental as well as instrumental moral value. I argue, along Fullerian lines, that the rule of law is conditionally non-instrumentally valuable in virtue of the way a legal system structures political relationships. (...)
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  45. Institutional Corruption and the Rule of Law.Paul Gowder - 2014 - Les ateliers de l'éthique/The Ethics Forum 9 (1):84-102.
    The literature contains two concepts of corruption which are often confused with one another: corruption as twisted character (pollution), and corruption as disloyalty. It also contains two sites for corruption: the corruption of individuals, and the corruption of entire institutions such as a state or a legislature.This paper first draws a clear distinction between the pollution and disloyalty concepts of corruption in the individual context, and then defends a conception of disloyalty corruption according to which the distinguishing feature is an (...)
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  46.  43
    Economic Globalization and the Rule of Law.William E. Scheuerman - 1999 - Constellations 6 (1):3-25.
  47.  50
    How Is the Rule of Law a Limit on Power?David McIlroy - 2016 - Studies in Christian Ethics 29 (1):34-50.
    A commitment to the rule of law is a commitment to the governance of a society through the use of general or generalisable rules which are binding on both the subjects and the rulers. By giving due notice of the rules and of any changes to them, those who are subject to the law are protected from violence and enabled to act as agents. This is the essential contribution the rule of law makes to important human goods including (...)
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  48. Autonomous Weapons and the Nature of Law and Morality: How Rule-of-Law-Values Require Automation of the Rule of Law.Duncan MacIntosh - 2016 - Temple International and Comparative Law Journal 30 (1):99-117.
    While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much as (...)
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  49.  21
    Abstraction and the Rule of Law.William Lucy - 2009 - Oxford Journal of Legal Studies 29 (3):481-509.
    This article tackles two issues: the nature of law's judgment and what, if anything, might be said in its favour. As to the first issue, the article reminds lawyers of the obvious, namely, that law's judgment is abstract, elucidating both what this entails and why it may be thought problematic. The main burden of the article is to consider what might be said in favour of law's abstract judgment. Only one family of arguments, part of a wider but still not (...)
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  50.  27
    Spontaneous Order and the Rule of Law: Some Problems.D. Neil Maccormick - 1989 - Ratio Juris 2 (1):41-54.
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