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Punishment Moralism Ratio Juris (IF 0.6) Pub Date : 2024-08-13 Shervin MirzaeiGhazi
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
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The Comparative Account of Tort Reparation Ratio Juris (IF 0.6) Pub Date : 2024-08-05 Peter Chau
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
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What Is the Ideal Dimension of Law? Ratio Juris (IF 0.6) Pub Date : 2024-07-24 Lorenz Kaehler
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
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A New Opening for the Alternative Punishments Debate: Applying the Extended Mind Thesis Ratio Juris (IF 0.6) Pub Date : 2024-07-24 Kamil Mamak
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
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The Balancing Exercise and the Resolution of Rhetorical Antinomies in Judicial Decision‐Making Ratio Juris (IF 0.6) Pub Date : 2024-05-15 Anita Soboleva
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
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The Public Interest: Clarifying a Legal Concept Ratio Juris (IF 0.6) Pub Date : 2024-05-15 Eric R. Boot
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
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On the Exclusionary Scope of Razian Reasons Ratio Juris (IF 0.6) Pub Date : 2024-05-09 J. J. Moreso
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
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Was Hart an Inclusive Positivist? Ratio Juris (IF 0.6) Pub Date : 2024-05-07 João Costa‐Neto, Henrique Porto de Castro
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
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The Two Faces of Binding Precedents: A Hohfeldian Look Ratio Juris (IF 0.6) Pub Date : 2024-03-05 María Beatriz Arriagada
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
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Other People's Liberties Ratio Juris (IF 0.6) Pub Date : 2024-02-27 Andrew Halpin
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
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Partial Reasons Ratio Juris (IF 0.6) Pub Date : 2024-02-25 Federico L. G. Faroldi
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
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The Incompatibility of Rawls's Justice as Fairness and His Just War Approach Ratio Juris (IF 0.6) Pub Date : 2024-01-23 Vicente Medina
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
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(Mis)Understanding Correlativity in Contractual Relations Ratio Juris (IF 0.6) Pub Date : 2024-01-08 Irina Sakharova
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
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Legal Interpretation, Conceptual Ethics, and Alternative Legal Concepts Ratio Juris (IF 0.6) Pub Date : 2023-11-05 David Plunkett
When legal theorists ask questions about legal interpretation—such as what it fundamentally is, what it aims at, or how it should work—they often do so in ways closely tethered to existing legal practice. For example: they try to understand how an activity legal actors (purportedly) already engage in should be done better, such as how judges can better learn about the content of the law. In this paper
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The Weaker Natural Law Thesis Ratio Juris (IF 0.6) Pub Date : 2023-10-25 Charles F. Capps
Natural law theories affirm that it belongs to the nature of law to be apt to promote the common good or do something similar. I defend a weak version of this thesis according to which part of what constitutes something as a nondefective central case of a posited law is that it is apt to promote the common good. Just as the rules of Pictionary require the drawing player to design her drawing to reveal
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Between Traditionalism and Revisionism: Estlund and Renzo on the Obligation to Obey Orders to Fight in Unjust Wars Ratio Juris (IF 0.6) Pub Date : 2023-10-22 Luciano Venezia, Rodrigo E. Sánchez Brígido
David Estlund and Massimo Renzo argue that, given the right background conditions, combatants are obligated to obey orders to fight in unjust wars, a thesis they put forward even as they recognize that this involves committing serious moral wrongs. Their views, then, fall between traditionalism and revisionism in the theory of just war. We argue that both Estlund and Renzo fail to adequately distinguish
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Against Human Rights Skeptics Ratio Juris (IF 0.6) Pub Date : 2023-10-22 Tomáš Sobek
The main goal of my text is to generalize Alexy's explicative argument against human rights skeptics in order to minimize the overall room for their escape. This argument tries to show that any attempt to intersubjectively justify the nonexistence of human rights as moral rights necessarily commits the so-called performative self-contradiction. Alexy worries that the effect of his argument can be weakened
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The Rule of Law, Comprehensive Doctrines, Overlapping Consensus, and the Future of Europe Ratio Juris (IF 0.6) Pub Date : 2023-07-26 Matej Avbelj
For more than a decade now a profound rule-of-law crisis has gripped the European Union, and while the fight for the rule of law has topped not only the academic but also the judicial and political agenda, the results have been disappointingly meagre. This article argues that the main reason for that should be sought in a political strategic move of justifying the assaults on the rule of law by resorting
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In Defense of the Standard Picture: Overcoming Death by a Thousand Cuts Ratio Juris (IF 0.6) Pub Date : 2023-07-18 Larry Alexander
In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root-and-branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly
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Interpretation, Argumentation, and the Determinacy of Law Ratio Juris (IF 0.6) Pub Date : 2023-07-14 Giovanni Sartor
This article models legal interpretation through argumentation and provides a logical analysis of interpretive arguments, their conflicts, and the resulting indeterminacies. Interpretive arguments are modelled as defeasible inferences, which can be challenged and defeated by counterarguments and be reinstated through further arguments. It is shown what claims are possibly (defensibly) or necessarily
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A Theory of Rights Based on Autonomy Ratio Juris (IF 0.6) Pub Date : 2023-06-05 Giorgio Maniaci
This article takes a critical look at the classic couplet of theories on the justification of rights, namely, the choice theory and the interest or benefit theory, where the two are understood to be in conflict. The argument is made that this couplet is best replaced with a new one, namely, a sophisticated rendering of the benefit theory coupled with the autonomy theory, such that any conflict is resolved
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Legal Judgment as Self-Mastery Ratio Juris (IF 0.6) Pub Date : 2023-05-21 Pavlos Eleftheriadis
Many legal theorists see legal judgment as a largely professional or technical task. This is not how law sees itself. When looked at from the perspective of the engaged judge, law requires from us that we arrive at a certain internal governance of our thoughts and emotions. Legal scholarship and legal procedure tell us that law creates true reasons that override other, personal, reasons, even those
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Giovanni Battista Ratti's Critique of Principles Theory Ratio Juris (IF 0.6) Pub Date : 2023-05-11 Robert Alexy
Ratti has attacked principles theory in two respects. The first is that it is impossible to distinguish between rules and principles. The second is that the main thesis of principles theory, which says that balancing is the specific way of applying principles, is wrong. The result of Ratti's critique is his thesis that principles theory founders on a contradiction or, as Ratti calls it, an antinomy
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Corrigendum to “An Antinomy in Alexy's Theory of Balancing” Ratio Juris (IF 0.6) Pub Date : 2023-05-05
In Ratti 2023, the closing sentence of Section 5 of the article reads: “Indeed, if the theory of proportionality is assumed, the theory of principles cannot be accepted, and if the theory of proportionality is assumed, the theory of principles cannot be accepted.” The sentence should read as follows: “Indeed, if the theory of proportionality is assumed, the theory of principles cannot be accepted,
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The Ethical Triage Dilemma: Who Should Receive Medical Care First; Is This the Right Question? Ratio Juris (IF 0.6) Pub Date : 2023-04-19 Alessandro Ferrara
In 2020, with the outbreak of the COVID-19 pandemic, academics and scientists began to question the triage criteria for allocating insufficient healthcare resources, trying to ethically justify the answer to the question, Who should receive medical care first? In this article, I will argue that even if we apply triage criteria, we won't be able to avoid the violation of human dignity or of the right
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Argumentative Representation and Democracy: A Critique of Alexy's Defense of Judicial Review of Legislation Ratio Juris (IF 0.6) Pub Date : 2023-04-12 Esteban Buriticá-Arango, Julián Gaviria-Mira
Robert Alexy has argued that the democratic objection to judicial review of legislation can be successfully addressed by assuming that judges exercise a special form of argumentative representation. In this article we argue that Alexy does not explain (as he should) under what circumstances judicial review tends to produce better decisions than parliamentary procedure, nor does he explain how judicial
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Conflicts of Rights and Action-Guidingness Ratio Juris (IF 0.6) Pub Date : 2023-04-04 Cristián Rettig, Giulio Fornaroli
In this paper, we raise two points. First, any rights-based theory should provide a method by which to guide reasoning in addressing conflicts of rights. The reason, we argue, is that these theories must provide guidance on what should be done. Second, this method must contain two key recommendations: (1) We should try to find a deliberative mechanism through which none of the rights is simply eliminated
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Concept or Context? The Exchanges between Ross and Kelsen on Valid Law and Efficacy Ratio Juris (IF 0.6) Pub Date : 2023-03-15 Svein Eng*
The aim of this paper is to point out the salient patterns of agreement and dis- agreement between Alf Ross and Hans Kelsen's analyses of valid law and efficacy. I argue that the disagreement has the character of systemic postulation on the part of both interlocutors. My main thesis is that the disagreement is not one of philosophical principle, but one that must be resolved on the basis of pragmatic
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Introduction to Brian H. Bix, Svein Eng, and Giorgio Ridolfi on Alf Ross Ratio Juris (IF 0.6) Pub Date : 2023-02-17 Alessio Sardo
In recent years, a growing number of legal scholars have revived the interest in the legal philosophy of Alf Ross (1899–1979) (see, e.g., Holtermann and Madsen 2015; Krešić 2019). This trend is well illustrated by the new English translation of Om ret og retfærdighed (Ross 1953) published by Oxford University Press (Ross 2019), and by the first translation into Italian of the almost forgotten Kritik
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The Morality of Compensation through Tort Law Ratio Juris (IF 0.6) Pub Date : 2023-02-09 Diego M. Papayannis
In this paper, I will focus on the normative structure of tort law. Only by elucidating the point or rationale of holding the wrongdoer responsible to the victim can we understand the value of having tort law instead of establishing other mechanisms of redress, such as a social insurance scheme. Ultimately, I will argue that the value of interpersonal justice, which underlies tort law, might not suffice
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Alf Ross on the Nature of Law Ratio Juris (IF 0.6) Pub Date : 2023-01-30 Brian H. Bix
In his work, On Law and Justice, Alf Ross sought to explain law in scientific/empirical terms, in terms that would require no recourse to what he called “metaphysics” or “idealism.” The result is a sort of translation of legal rules and official actions into propositions of behavior, predictions of behavior, and shared ideology. The present work raises questions about the tensions within Ross's work(s)
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Legislative Intentions and Counterfactu-als: Or, What One Can Still Learn from Dworkin's Critique of Legal Positivism Ratio Juris (IF 0.6) Pub Date : 2023-01-30 Damiano Canale, Giovanni Tuzet
Riggs v. Palmer has become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue in Riggs was given by the counterfactual intention of the legislature. According to arguments from legislative intent, a judicial decision is
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An Antinomy in Alexy's Theory of Balancing Ratio Juris (IF 0.6) Pub Date : 2023-01-20 Giovanni B. Ratti
This article argues that Robert Alexy's influential theory of balancing is affected by a contradiction that makes it unfeasible as an instrument by which to explain some aspects of law and legal reasoning it aims to clarify. In particular, I will show that one of the premises of Alexy's theory of balancing is incompatible with its conclusion. Alexy's theory is based upon a sharp distinction between
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Consent, Sovereignty, and Pluralism: Harold Laski's Doctrine of Allegiance in British Legal Philosophy Ratio Juris (IF 0.6) Pub Date : 2022-11-28 Pier Giuseppe Puggioni
This paper analyses the intertwinement of legal philosophy and political theory in the British intellectual framework between the late 19th and early 20th centuries, with specific regard to Harold Laski's works. I will try to illustrate the transition from 19th-century utilitarianism to H. L. A. Hart and Isaiah Berlin as evolving through important debates which include Laski's contribution. I will
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Reviving the Distinction between Positive and Negative Human Rights Ratio Juris (IF 0.6) Pub Date : 2022-11-28 Johan Vorland Wibye
Increasingly firm rejections of the distinction between positive and negative human rights as incoherent have created a gap between theory and practice, as well as tensions within legal doctrinal and philosophical literature. This article argues that the distinction can be preserved by means of a structural account of the interaction of duties within human rights, anchored in case law on the right
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“Trialectics” of Legal Interpretation Ratio Juris (IF 0.6) Pub Date : 2022-11-28 LUKÁŠ LEV ČERVINKA
Law is perceived as a stabilising mechanism in an everchanging world and, as such, is founded on the quest for the one “true” meaning of legal norms as a basis for the rule of law. But I shall suggest that it is futile to seek a fixed meaning of legal norms or the one “true” method for interpreting them. The argument will be built by first considering the “trialectics” between hermeneutics, linguistics
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A Bayesian Improvement of the Proportionality Principle Ratio Juris (IF 0.6) Pub Date : 2022-11-28 Mirko Pecaric
The principle of proportionality is seen as the highest peak of structural, logical thinking that enables balancing between constitutional principles and their interferences. So far, Alexy's weight formula has been the most advanced approach in structured balancing of proportionality stricto sensu, while this paper shows it as still too subjective. Despite judicial tests—or different, manifestly inappropriate
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Against the Religious Neutrality Requirement Ratio Juris (IF 0.6) Pub Date : 2022-11-15 Henrik Friberg-Fernros
One element of the liberal ideal of secularity is the principle that the state should treat religions neutrally: This is the religious neutrality requirement. Applied to religious belief systems, the principle stipulates that the state should not take a position on whether or not a certain religion is true. I challenge this ideal and argue that teachers in public schools sometimes need to take a position
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Laments, Remedies, Rights: Nietzsche’s Genealogy of Morality through the Prism of Roman Law Ratio Juris (IF 0.6) Pub Date : 2022-09-05 Tatjana Sheplyakova
This article draws on the analysis of Roman law and on the Jewish tradition of lamentation to offer an original reinterpretation of Nietzsche’s On the Genealogy of Morality. According to Nietzsche, an archetype of a successful revolt against injustice is to be attributed to the Jews—as the ones who were able to carry out “the most spiritual revenge” against the Roman “masters” by transvaluing their
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Contract as a Transfer of Ownership and Public Justification: Two Models Ratio Juris (IF 0.6) Pub Date : 2022-09-05 Leandro Martins Zanitelli
This article deals with Peter Benson’s claim that, unlike rival approaches such as promissory morality and the economic analysis of law, the theory of contract as transfer of ownership offers a public basis of justification for the coercive practice of contracts. The article points out that this claim can be understood in two ways, each corresponding to a model of public justification, namely, the
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Corrigendum to “Between Legal Philosophy and Cognitive Science: The Tension Problem” Ratio Juris (IF 0.6) Pub Date : 2022-09-05
In the article’s asterisk footnote, funding information was misstated. This has been corrected to “Research for the article titled ‘Between Legal Philosophy and Cognitive Science: The Tension Problem’ (Jakubiec 2022) was financed by the Polish National Science Center (Grant No. 2017/27/B/HS5/01407) within the framework of a project titled ‘The Architecture of the Legal Mind.’” We apologize for this
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Raz and the Rule of (Authoritative) Law Ratio Juris (IF 0.6) Pub Date : 2022-08-16 Hillary Nye*
In this paper I bring together Joseph Raz’s work on authority and his work on the rule of law, arguing that his commitments about authority entail the conclusion that the rule of law is integral to the very nature of law. I take no position on whether Raz is right about the nature of law. Instead, I aim to mount an entirely internal critique of Raz’s work that will show that if Raz is right about authority
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Social Entitlements in Habermas’s Discourse Theory of Law: Welfare State Regulations as Legitimizing Institutions Ratio Juris (IF 0.6) Pub Date : 2022-08-05 Stefan Späth
In Habermas’s discourse theory of law, the guarantee of citizens’ private and public autonomy is a prerequisite of legitimate law. This includes social entitlements. They provide the living conditions necessary for equal opportunities in the use of private and public freedoms. A proceduralist paradigm of the welfare state ensures private and public autonomy in shaping social rights. This makes welfare
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Wrongs and Sanctions in the Pure Theory of Law Ratio Juris (IF 0.6) Pub Date : 2022-08-05 Luís Duarte D’almeida
This short paper addresses a well-known difficulty in the Pure Theory of Law: the definition of a legal wrong. Kelsen was unable to offer a suitable one, critics say. I agree. But the critics misdiagnosed the problem, and prescribed for it a fruitless solution. The reason for Kelsen’s failure, the critics say, was that he thought the law consists only of sanction-stipulating norms addressed to officials
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Justifying the Imperfect: Differentiated Integration and the Problem of the Second Best Ratio Juris (IF 0.6) Pub Date : 2022-06-19 Erik O. Eriksen
This article deals with the problem of the second best in a politically differentiated Europe. Drawing on Kant’s category of permissive law of public right, it establishes the missing link between ideal and nonideal theory and then an indirect legitimation theorem. This theorem provides tools to contain damages and unlock practices and dynamics that obstruct reforms and lead to counterproductive outcomes
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Constitutional Norms—Erosion, Sabotage, and Response Ratio Juris (IF 0.6) Pub Date : 2022-06-01 Gerald J. Postema
This article explains the nature and constitutional role of norms and explores ways to respond to the challenges they face, which threaten the viability of democracy. Constitutional norms are informal unwritten rules embedded in the normative practices of officials and political leaders. The effect of departures from constitutional norms depends on the seriousness with which participants take responsibility
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Delimiting Legal Interpretation: The Problem of Moral Bias and Political Distortion—the Case of Criminal Intention Ratio Juris (IF 0.6) Pub Date : 2022-05-31 Izabela Skoczeń, Francesca Poggi
This essay criticizes Dworkin’s and Greenberg’s interpretivism using one concrete example, namely, the interpretation of rules of criminal law pertaining to intentionality ascriptions. In fact, according to interpretivism, some judicial interpretations of criminal intention can be explained as practices that depart from legislatively communicated content to implement moral principles. We distinguish
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Kelsen’s Metaethics Ratio Juris (IF 0.6) Pub Date : 2022-05-23 Torben Spaak
In this article, I argue, inter alia, that Kelsen’s mature view—as expressed in, and around the time of, the second edition of Reine Rechtslehre—was that of a metaethical relativist, and that the commitment to metaethical relativism was the reason why Kelsen defended democracy as well as tolerance in the shape of a constitutionally guaranteed freedom of thought. I also consider the possibility that
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Between Legal Philosophy and Cognitive Science: The Tension Problem Ratio Juris (IF 0.6) Pub Date : 2022-05-12 Marek Jakubiec
Much controversy has arisen in recent years about the relation between legal philosophy and cognitive science, with some authors announcing a revolution brought about in law by the advances in the scientific study of cognition. At the same time, pessimistic declarations were made, and the significance of cognitive science for law and legal philosophy was denied. In this paper I argue that representatives
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Corrigendum Ratio Juris (IF 0.6) Pub Date : 2022-04-17
Constitutive Rules: The Symbolization Account In compliance with an Italian rule whose point we do not fully understand, we are making the following authorship contribution statement for the article titled “Constitutive Rules: The Symbolization Account” (Brigaglia and Celano 2021), published in Volume 34, Issue 3, of Ratio Juris: Sections 1, 2, 6, and 8 of the article are by Bruno Celano; Sections
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A Pluralistic Virtue-Centered Theory of Judging Ratio Juris (IF 0.6) Pub Date : 2022-04-03 Gregory Bassham, Olivia Ostrowski
Though first proposed more than two decades ago, virtue jurisprudence—broadly, the attempt to apply the insights and perspectives of virtue ethics to law and legal theory—has failed to gain much traction in the legal academy. This is partly due, we suggest, to the dominance of traditionalist neo-Aristotelian approaches to virtue jurisprudence—most notably in the work of Lawrence Solum, the most prominent
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Postema and the Common Law Tradition Ratio Juris (IF 0.6) Pub Date : 2022-03-29 Michael Lobban
First published in 1986, Gerald Postema’s pathbreaking and influential Bentham and the Common Law Tradition offered a controversial interpretation of how Bentham sought to combine the certainty of a code with flexibility in adjudication. A second edition of the work came out in 2019, with a significant new Afterword in which Postema addresses some of the criticisms of his interpretation. This article
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Bentham as a Theorist of the Rule of Law and His Idea of Universal Interest Ratio Juris (IF 0.6) Pub Date : 2022-03-29 Michihiro Kaino
I will focus on three chapters of Professor Gerald Postema’s book Utility, Publicity, and Law: Essays on Bentham’s Moral and Legal Philosophy (2019). In these chapters, Postema offered new and compelling interpretations of Bentham’s work, such as his notion that Bentham was a theorist of the rule of law. However, it is difficult to assume that the majority would exercise moral sanctions and control
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The Limits of the Law Ratio Juris (IF 0.6) Pub Date : 2022-03-27 Gianfrancesco Zanetti
This paper scrutinizes the notion of the limits of the law by contrasting the narrative of the autonomy and independence of legal systems with the alternative narratives the law itself can acknowledge. If the limits of the law can dwell in this acknowledgment of alternative narratives, such limits will turn out to be neither reassuring borders nor protective walls. In the interstitial spaces between