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Administration as Democratic Trustee Representation Legal Theory (IF 1.2) Pub Date : 2024-01-26 Katharine Jackson
The “folk” theory of democracy that typically justifies the administrative state cannot help but lead to a discourse of constraint. If agency action is only legitimate when it mechanically applies the will of the voters as transposed by Congress through statutes, then the norms guiding that action will inevitably restrain agency discretion. As a result, attempts to establish the democratic credentials
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Proportionality, Comparability, and Parity: A Discussion on the Rationality of Balancing Legal Theory (IF 1.2) Pub Date : 2024-01-25 Piero Ríos Carrillo
This article analyses the rationality of the principle of proportionality as a justificatory method for solving cases involving conflicts of constitutional principles. It addresses the “problem of comparability”: a set of arguments claiming that proportionalists fail to understand what happens when constitutional principles collide. The problem of comparability suggests that balancing cannot be done
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Neglecting Others and Making It Up to Them: The Idea of a Corrective Duty Legal Theory (IF 1.2) Pub Date : 2024-01-10 Giulio Fornaroli
I aspire to answer two questions regarding the concept of a corrective duty. The first concerns what it means to wrong others, thus triggering a demand for corrections (the ground question). The second relates to the proper content of corrective duties. I first illustrate how three prominent accounts of corrective duties—the Aristotelian model of correlativity, the Kantian idea that wronging corresponds
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Precedent and Fairness Legal Theory (IF 1.2) Pub Date : 2023-10-24 Adam Perry
Courts in common law systems decide cases as they decided like cases in the past—even if they believe they decided those past cases wrongly. What, if anything, justifies this practice? I defend two main claims. The first is that fairness favors treating like cases alike if that means treating them correctly. The second is that, in general, a court is as likely to decide an instant case correctly as
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The Exclusionary Power of Political Directives Legal Theory (IF 1.2) Pub Date : 2023-10-11 Yuan Yuan
I defend the exclusionary power of political directives. The prevailing account, which I call the additive account, holds that a legitimate directive only provides a pro tanto obligation for subjects to comply. I show that it falls into a Goldilocks dilemma, giving either insufficient or excessive weight to these obligations. Pace the additive account, I argue that a legitimate directive not only gives
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The Promise and Limits of Grounding in Law Legal Theory (IF 1.2) Pub Date : 2023-09-29 Bosko Tripkovic, Dennis Patterson
Discussions of metaphysical grounding have recently found their way into general jurisprudence. It is becoming increasingly common to frame the debate between positivism and antipositivism as a disagreement about what facts metaphysically ground legal facts. In this article we critically evaluate this grounding turn. First, we argue that articulating the debate about the nature of law in terms of grounding
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Speaking for Others from the Bench Legal Theory (IF 1.2) Pub Date : 2023-09-15 Wendy Salkin
In this article, I introduce and examine the novel concept of bench representation. Jurists and scholars have extensively examined whether judges are or ought to be considered symbolic representatives of abstract concepts (for instance, the law, equality, or justice), representatives of society as a whole, or descriptive representatives of the social groups from which they hail. However, little attention
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Rights, Abstraction, and Correlativity Legal Theory (IF 1.2) Pub Date : 2023-09-08 Julian David Jonker
I survey several counterexamples (by Raz and MacCormick) to Hohfeld's conjecture that a claim-right is correlative to a directed duty and (by Cornell and Frick) to Bentham's suggestion that a claim-right is correlative to a wronging. We can vindicate these claims of correlativity if we acknowledge that entitlements like claim-rights and directed duties admit of degrees of abstraction: that they may
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The Dogma of Opposing Welfare and Retribution Legal Theory (IF 1.2) Pub Date : 2023-09-04 Leora Dahan Katz
There is a common refrain in the literature on punishment that presumes the mutual exclusivity of defending retribution and adopting a humanistic or welfare-oriented outlook. The refrain, that if we want to be humane, or care about human welfare, we must abandon retributive punishment, anger, and resentment is readily repeated, endorsed, and relied upon. This article suggests that this opposition is
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Are There Any Conventional Obligations? Legal Theory (IF 1.2) Pub Date : 2023-08-18 Ezequiel Monti
There are reasons to believe that conventional obligations are impossible. Thus, it could be argued that for me to have an obligation to Φ in virtue of the fact that a convention so requires, it must be the case that I have a convention-independent obligation to do something else such that, given the existence of the convention, Φing is a way of doing just that. But, then, my obligation to Φ would
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Political Reasons and the Limits of Political Authority Legal Theory (IF 1.2) Pub Date : 2023-04-27 Arie Rosen
Authority is a normative power to create duties in others. The most plausible accounts of this general power relate it to existing reasons the subjects of authority have with which authoritative directives can help them comply. Such accounts lead some theorists to ascribe a morally ambitious function to political institutions. This article argues against such theories. It defends political authority
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Jurisdiction and the Moral Impact Theory of Law Legal Theory (IF 1.2) Pub Date : 2023-03-30 Michael S. Green
Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set
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THEORIZING AREAS OF LAW: A TAXONOMY OF SPECIAL JURISPRUDENCE Legal Theory (IF 1.2) Pub Date : 2023-01-04 Tarunabh Khaitan, Sandy Steel
This paper provides a taxonomy of the different kinds of theory that may be offered of an area of law. We distinguish two basic types of philosophical accounts in special jurisprudence: nonnormative accounts and normative accounts. Section II explains the two central subspecies of nonnormative accounts of areas of law: (i) conceptual and ontological theories and (ii) reason-tracking causal theories
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LAW AND MORALITY IN HUMANITARIAN INTERVENTION Legal Theory (IF 1.2) Pub Date : 2022-12-06 Linda Eggert
This paper examines what prevents us from legally enforcing the moral imperative of protecting human rights during military operations carried out for distinctly humanitarian purposes. The answer, I argue, lies not in familiar objections to bringing the law into greater congruence with morality, but in international law's indeterminacy regarding the use of force. Preserving stability within the nascent
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THE DISUNITY OF LEGAL REALITY Legal Theory (IF 1.2) Pub Date : 2022-10-24 David Plunkett, Daniel Wodak
Take “legal reality” to be the part of reality that actual legal thought and talk is distinctively about, such as legal institutions, legal obligations, and legal norms. Our goal is to explore whether legal reality is disunified. To illustrate the issue, consider the possibility that an important metaphysical thesis such as positivism is true of one part of legal reality (legal institutions), but not
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ONE-SYSTEM INTEGRITY AND THE LEGAL DOMAIN OF MORALITY Legal Theory (IF 1.2) Pub Date : 2022-10-05 Conor Crummey
According to contemporary nonpositivist theories, legal obligations are a subset of our genuine moral obligations. Debates within nonpositivism then turn on how we delimit the legal “domain” of morality. Recently, nonpositivist theories have come under criticism on two grounds. First, that they are underinclusive, because they cannot explain why paradigmatically “legal” obligations are such. Second
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A PUZZLE ABOUT VAGUENESS, REASONS, AND JUDICIAL DISCRETION Legal Theory (IF 1.2) Pub Date : 2022-08-23 Hrafn Asgeirsson
The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged
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THE LAW'S AVERSION TO NAKED STATISTICS AND OTHER MISTAKES Legal Theory (IF 1.2) Pub Date : 2022-07-26 Ronald J. Allen, Christopher K. Smiciklas
A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer
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PRECONTRACTUAL JUSTICE Legal Theory (IF 1.2) Pub Date : 2022-06-02 Hanoch Dagan, Avihay Dorfman
This article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the social order as a whole. Normatively, the article claims
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RUTH G. MILLIKAN'S CONVENTIONALISM AND LAW Legal Theory (IF 1.2) Pub Date : 2022-06-02 Marcin Matczak
Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis. Three arguments are proffered
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FRIENDSHIP AND THE WISHES OF THE DEAD Legal Theory (IF 1.2) Pub Date : 2022-05-23 Dale Dorsey
The wishes of the dead seem to have normative significance. We not only respect last wills and testaments, but we take seriously what the dead loved, what they valued, even after they have long escaped this mortal coil. But this presents a philosophical puzzle. Is this a normatively justified practice? Why should the fact that some dead person preferred state of affairs x to state of affairs y be a
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CONSENT, INTERACTION, AND THE VALUE OF SHARED UNDERSTANDING Legal Theory (IF 1.2) Pub Date : 2022-03-28 Richard Healey
Recent years have seen a proliferation of philosophical work on consent. Within this body of work, philosophers often appeal to an account of the interests, values, or functions that underpin the power of consent. By far the most commonly cited value realized by the power of consent is the promotion and protection of the power-holder's autonomy. This focus on autonomy yields what I call the Gate Opener
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GROUNDING UNLAWFUL DISCRIMINATION Legal Theory (IF 1.2) Pub Date : 2022-02-21 Michael P. Foran
This article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article
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IN DEFENSE OF THE STANDARD PICTURE: WHAT THE STANDARD PICTURE EXPLAINS THAT THE MORAL IMPACT THEORY CANNOT Legal Theory (IF 1.2) Pub Date : 2022-02-07 Bill Watson
How do legal texts determine legal content? A standard answer to this question—sometimes called “the standard picture”—is that legal texts communicate something and what they communicate is identical to legal content. Mark Greenberg criticizes the standard picture and offers in its place his own “moral impact theory.” My goal here is to respond to Greenberg by showing how the standard picture better
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HOW TO JUSTIFY MANDATORY ELECTORAL QUOTAS: A POLITICAL EGALITARIAN APPROACH Legal Theory (IF 1.2) Pub Date : 2021-12-16 Attila Mráz
This paper offers a novel substantive justification for mandatory electoral quotas—e.g., gender or racial quotas—and a new methodological approach to their justification. Substantively, I argue for a political egalitarian account of electoral quotas. Methodologically, based on this account and a political egalitarian grounding of political participatory rights, I offer an alternative to the External
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CRIMES AS PUBLIC WRONGS Legal Theory (IF 1.2) Pub Date : 2021-11-29 Jeffrey Kennedy
Despite the notion's prominence, scholarship has yet to offer a viable account of the view that crimes constitute public wrongs. Despite numerous attempts, some scholars are now doubting whether a viable account is forthcoming whereas others are reeling back expectations for what the concept itself can offer. This article vindicates crime's public character while asserting the relevance of political
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THE INTEREST THEORY OF RIGHTS: STILL STANDING Legal Theory (IF 1.2) Pub Date : 2021-11-29 Visa A.J. Kurki
In two recent papers, Mark McBride has attacked the interest theory of rights, both introducing new arguments and claiming that interest theorists have not successfully deflected Gopal Sreenivasan's earlier arguments. This essay replies to all of McBride's criticisms, showing them to be mistaken.
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OBJECTIVE INTENTIONALISM AND DISAGREEMENT Legal Theory (IF 1.2) Pub Date : 2021-11-09 David Tan
Intentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This
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AA-RM WRESTLING: COMPARING ANALOGICAL APPROACHES AND RULE MODELS FOR LEGAL REASONING Legal Theory (IF 1.2) Pub Date : 2021-11-05 Adam Rigoni
Legal reasoning is commonly thought of as being based on either rules or analogies. More specifically, there is ongoing debate regarding whether precedential reasoning is best characterized as rule-based or analogical. This article continues that work by comparing recent and representative approaches from each camp, namely, Stevens's analogical model and the “rule-based” model of Horty and Rigoni.
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CONSENT TO UNJUST INSTITUTIONS Legal Theory (IF 1.2) Pub Date : 2021-10-07 Bas van der Vossen
John Rawls wrote that people can voluntarily acquire political obligations to institutions only on the condition that those institutions are at least reasonably just. When an institution is seriously unjust, by contrast, attempts to create political obligation are “void ab initio.” However, Rawls's own explanation for this thought was deeply problematic, as are the standard alternatives. In this paper
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FREEDOM FROM THINGS: A DEFENSE OF THE DISJUNCTIVE OBLIGATION IN CONTRACT LAW Legal Theory (IF 1.2) Pub Date : 2021-09-07 Jennifer Nadler
This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either
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FREEDOM OF EXPRESSION AND SOCIAL COERCION Legal Theory (IF 1.2) Pub Date : 2021-08-16 Gideon Elford
Much legal and philosophical work has been devoted to discussing the importance of protecting freedom of expression from legislative curtailment by the state. That state-centric focus has meant that the ways that wider social phenomena can stifle freedom of expression have, with a notable exception, escaped sustained philosophical attention. The paper reflects on the nature of socially coercive restrictions
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RIGHTS AS RATIONALIZATIONS? PSYCHOLOGICAL DEBUNKING OF BELIEFS ABOUT HUMAN RIGHTS Legal Theory (IF 1.2) Pub Date : 2021-08-11 Christoph Bublitz
This paper explores a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights and based on a psychological dual-process model of decision-making. Debunking arguments undermine confidence in a belief because of shortcomings of the empirical conditions under which it was formed. They thereby open a route from the descriptive to the
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HYPERLEXIS AND THE RULE OF LAW Legal Theory (IF 1.2) Pub Date : 2021-07-07 Vincent Chiao
On a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather
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CASTING THE LIGHT OF THE THEORY OF OPPOSITION ONTO HOHFELD'S FUNDAMENTAL LEGAL CONCEPTS Legal Theory (IF 1.2) Pub Date : 2021-06-25 João Alberto de Oliveira Lima, Cristine Griffo, João Paulo A. Almeida, Giancarlo Guizzardi, Marcio Iorio Aranha
At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal
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THE RULE OF LAW AND THE LIMITS OF ANARCHY Legal Theory (IF 1.2) Pub Date : 2021-06-04 Carmen E. Pavel
Anarchy is often contrasted with law, order, or security. But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems that regulate the behavior of their members and protect their rights. International law, market anarchism, and other models of anarchism such as the one proposed by Chandran Kukathas already
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A DEFENSE OF HUMEAN PROPERTY THEORY Legal Theory (IF 1.2) Pub Date : 2021-05-14 Ira K. Lindsay
Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins
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WORKING AS EQUAL MORAL AGENTS Legal Theory (IF 1.2) Pub Date : 2021-05-07 Sabine Tsuruda
This article develops and advances a liberal ideal of equality for evaluating the lawful scope of employer control over employees. It argues that, in addition to attending to discrimination and bargaining power asymmetries, we should ensure that our laws treat workers as the moral equals of their bosses more broadly—as people with equally weighty claims to exercising agency over their own values and
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MISTAKEN AUTHORITY AND OBLIGATION Legal Theory (IF 1.2) Pub Date : 2021-03-23 Luciano Venezia
Massimo Renzo argues that, as long as it is acting in good faith, an authority can issue orders that require subjects to act in ways that are morally wrong and still be acting within the scope of its jurisdiction, so that the orders are binding. This, however, is incorrect. If the authority is permitted to issue an order, it is acting within the scope of its jurisdiction and so the order creates an
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KEEPING JUSTICE (LARGELY) OUT OF CHARITY: PLURALISM AND THE DIVISION OF LABOR BETWEEN CHARITABLE ORGANIZATIONS AND THE STATE Legal Theory (IF 1.2) Pub Date : 2021-01-26 Daniel Halliday, Matthew Harding
Justice can be pursued by the state, or through voluntary charity. This paper seeks to contribute to the debate about the appropriate division of labor between government and charitable agencies by developing a positive account of the charity sector's moral foundations. The account given here is grounded in a legal conception of charity, as a set of subsidies and privileges designed to cultivate a
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TOLERANCE OF INCOHERENCE IN LAW, GRADED SPEECH ACTS AND ILLOCUTIONARY PLURALISM Legal Theory (IF 1.2) Pub Date : 2020-12-23 Oren Perez
One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence.
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COMPENSATION AND CONTINUITY Legal Theory (IF 1.2) Pub Date : 2020-12-23 Sandy Steel
This article examines accounts of the moral basis of compensatory duties that explain such duties as the continuation, in some way, of the pre-wrong normative situation. I identify, contrast, and assess three versions of this view—duty continuity, right continuity, and reasons continuity. I argue that each version is defensible, once properly articulated. The article responds to a range of objections
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THE NEW LEGAL ANTI-POSITIVISM Legal Theory (IF 1.2) Pub Date : 2020-12-21 Hasan Dindjer
According to a recent wave of work by legal anti-positivists, legal norms are a subset of moral norms. This striking “one-system” view of law has rapidly become the dominant form of anti-positivism, but its implications have so far been little tested. This article argues that the one-system view leads systematically to untenable conclusions about what legal rights and obligations we have. For many
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CONSTITUTIONAL LAW AND THE LIMITS OF RAWLSIAN LIBERTY Legal Theory (IF 1.2) Pub Date : 2020-10-15 Gillian Sinnott
This paper examines the scope of John Rawls's theory of liberty. It first develops an account of how this theory, which Rawls presents in largely abstract terms, applies in specific cases. It then argues that this account reveals that the scope of Rawls's theory of liberty is surprisingly narrow and that it does not include such seemingly obvious liberal rights as the freedom to engage in the sexual
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PROCEDURAL RIGHTS AND FACTUAL ACCURACY Legal Theory (IF 1.2) Pub Date : 2020-10-05 Hamish Stewart
People have procedural rights because states are under a duty of political morality to provide them with fair procedures for settling disputes about the application of the laws. This obligation flows from the state's duty to treat each person as a free and equal member of the legal order. Yet adherence to procedural rights can impede accuracy in fact-finding, which in turn can result in poor protection
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A NEW INTERPRETIVIST METASEMANTICS FOR FUNDAMENTAL LEGAL DISAGREEMENTS Legal Theory (IF 1.2) Pub Date : 2020-09-01 François Schroeter, Laura Schroeter, Kevin Toh
What does it take for lawyers and others to think or talk about the same legal topic—e.g., defamation, culpability? We argue that people are able to think or talk about the same topic not when they possess a matching substantive understanding of the topic, as traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines
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LAW'S BOUNDARIES Legal Theory (IF 1.2) Pub Date : 2020-08-24 Adam Perry
The norms of a legal system are relevant in deciding on people's rights and duties within that system. Some norms that are not part of a legal system are also relevant within it: norms of foreign legal systems, games, clubs, contracts, grammar, and so on. What distinguishes the norms of a legal system from the norms merely relevant within it? Where, in other words, are law's boundaries? There are three
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PRESERVING THE INTEREST THEORY OF RIGHTS Legal Theory (IF 1.2) Pub Date : 2020-08-18 Mark McBride
According to interest theorists of rights, rights function to protect the right-holder's interests. True. But this leaves a lot unsaid. Most saliently here, it is certainly not the case that every agent who stands to benefit from performance of a duty gets to be a right-holder. For a theory to allow this to be the case—to allow for an explosion of right-holders—would be tantamount to a reductio thereof
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PROTECTED REASONS AND PRECEDENTIAL CONSTRAINT Legal Theory (IF 1.2) Pub Date : 2020-07-15 Robert Mullins
According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected
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THE EFFICACY CONDITION Legal Theory (IF 1.2) Pub Date : 2020-06-30 Thomas Adams
“A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an
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THE SCOPE OF RELIGIOUS GROUP AUTONOMY: VARIETIES OF JUDICIAL EXAMINATION OF CHURCH EMPLOYMENT DECISIONS Legal Theory (IF 1.2) Pub Date : 2020-06-17 Paul Billingham
The idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from
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HATE SPEECH LAWS: EXPRESSIVE POWER IS NOT THE ANSWER Legal Theory (IF 1.2) Pub Date : 2020-05-07 Maxime Lepoutre
According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge
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PROTECTED REASONS AND PRECEDENTIAL CONSTRAINT—ERRATUM Legal Theory (IF 1.2) Pub Date : 2020-03-01 Robert Mullins
• For any case c = 〈X, r, s〉, Factors(c) = X, Rule(c) = r and Outcome(c) = s. • In order to ensure coherence, we stipulate that for any case c = 〈X, r, s〉 belonging to a case base Γ, Premise(r) ⊆ X. • Suppose the court reasons against the background of a case base Γ1 that contains only one case, c1 = 〈X1, r1, π〉. • In a new fact scenario X, a decision in X based on the rule r and leading to outcome
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SENSITIVITY, SAFETY, AND THE LAW: A REPLY TO PARDO Legal Theory (IF 1.2) Pub Date : 2019-12-13 David Enoch, Levi Spectre
In a recent paper, Michael Pardo argues that the epistemic property that is legally relevant is the one called Safety, rather than Sensitivity. In the process, he argues against our Sensitivity-related account of statistical evidence. Here we revisit these issues, partly in order to respond to Pardo, and partly in order to make general claims about legal epistemology. We clarify our account, we show
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THE AUTHORITY OF MORAL OVERSIGHT: ON THE LEGITIMACY OF CRIMINAL LAW Legal Theory (IF 1.2) Pub Date : 2019-09-12 Christopher Bennett
An influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what
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CONTRACTUALIST JUSTIFICATION AND THE DIRECTION OF A DUTY Legal Theory (IF 1.2) Pub Date : 2019-06-13 Julian Jonker
To whom is a duty owed? Contractualism answers with an interest theory of direction. As such, it faces three challenges. The Conceptual Challenge requires acknowledgment that a duty is conceptually distinct from an interest. The Extensional Challenge requires an account of cases in which one who is owed a duty does not take an interest in the duty, or does not take as much of an interest as someone
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THE ELUSIVE OBJECT OF PUNISHMENT Legal Theory (IF 1.2) Pub Date : 2019-06-04 Gabriel S. Mendlow
All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain
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MULTIPLE REASONABLE BEHAVIORS CASES: THE PROBLEM OF CAUSAL UNDERDETERMINATION IN TORT LAW Legal Theory (IF 1.2) Pub Date : 2019-05-29 Maytal Gilboa
This article introduces a significant yet largely overlooked problem in the law of torts: causal underdetermination. This problem occurs when the causal inquiry of a but-for test produces not one but two results, which are contradictory. According to the first, the negligent defendant is the likely cause of the plaintiff's injury, whereas according to the second, she is not. The article explains why
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THEORIES OF VAGUENESS AND THEORIES OF LAW Legal Theory (IF 1.2) Pub Date : 2019-04-23 Alex Silk
It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in
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VAGUE COMPARISONS AND PROPORTIONAL SENTENCING Legal Theory (IF 1.2) Pub Date : 2019-03-25 Jacob Bronsther
The “small improvement problem” (“the Problem”) applies when no option in a comparison is best nor, it seems, are the options equal, because a small improvement to one would fail to make it the better choice. I argue that vagueness causes the Problem, such that the options are vaguely equal or vaguely “related.” I then unpack an important instance of the Problem, the comparison between a crime and