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Climate Refugees and the Limits of Reparative Obligations to Offer Asylum Law Philos. (IF 0.8) Pub Date : 2024-09-11 Ali Emre Benli
A growing number of authors argue that states which are responsible for global temperature rise owe reparative obligations to offer asylum to climate refugees because their decisions have led to the severe harms which climate refugees suffer. The validity and significance of reparative obligations as ideal moral requirements notwithstanding, this paper argues that, in practice, relying on causal responsibility
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The conceptual structure of perjury Law Philos. (IF 0.8) Pub Date : 2024-07-18 Luis López
Alison Douglis argues that perjury is nothing more than a tool to facilitate court proceedings, conceptually distinct from lying. Instead, I argue that the conceptual structure of perjury and of lying match almost perfectly. Apparent mismatches do not arise as a property of perjury but as a consequence of the juridical context. I present an overview of some of the recent philosophical work on lies
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Aim or preference? Reflections on the commitment to the truth in the criminal process Law Philos. (IF 0.8) Pub Date : 2024-07-15 Federico Picinali
It is widely accepted that the criminal process aims at the truth. It is also widely accepted that convicting the innocent is worse than acquitting the guilty. While apparently unrelated, these two claims are in tension with one another. The latter claim is traditionally used to justify a standard of proof that is skewed in favour of the defendant, aimed at protecting the innocent from conviction.
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Arbitrary Power: Caricature and Concept Law Philos. (IF 0.8) Pub Date : 2024-06-29 Farrah Ahmed
Arbitrary power is often understood as bearing some kind of relation to tyrannical rule, a relation that is thought to explain why arbitrary power is objectionable. But what is tyrannical rule? What precisely is the relationship between arbitrary power and tyranny? Why (if at all) is arbitrary power objectionable? Arbitrary power, this paper argues, is best understood through the figure of the tyrant
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Recourse, Litigation, and the Rule of Law Law Philos. (IF 0.8) Pub Date : 2024-06-29 Matthew A. Shapiro
Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule helps us (albeit unwittingly) to see why. While Postema presents recourse
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Moves & Rules: Addressing the Puzzle of Social Rule-Following Law Philos. (IF 0.8) Pub Date : 2024-06-29 Alma Diamond
I explore a puzzle at the heart of the so-called ‘practice theory of rules’: how can rules, operating as normative standards, be determined by the very actions they govern? I demonstrate how this puzzle has shaped criticism of the practice theory and limited its ability to account for mistake and disagreement within social practices. I identify the reason for these difficulties: an exclusive focus
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Rights, Wronging, and Equality of Status Law Philos. (IF 0.8) Pub Date : 2024-06-19 Giulio Fornaroli
Two problems about rights have received so far little attention. One is the problem of identifying a general value in the practice of rights. The second is to see when, if at all, rights violations wrong the right-holder, in a morally significant sense. In the present essay, I address the first question by investigating the second. I first show that if we commit to the two ideas, common in the contemporary
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Cultural Injustice and Refugee Discrimination Law Philos. (IF 0.8) Pub Date : 2024-06-15 Rufaida Al Hashmi
Many believe that it is morally impermissible to select refugees applying for resettlement on the basis of religion but morally permissible to do so on the basis of language. In this paper, I challenge this position. I argue that if we oppose selection by religion, then we should also oppose selection by language. I argue that the kind of religious selection proposed by some is demeaning because of
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The Personality of Public Authorities Law Philos. (IF 0.8) Pub Date : 2024-06-13 Manish Oza
This paper is about when associations, and in particular associations that are part of the state, should be treated as legal persons. I distinguish two forms of association – those that render coherent the agency of their members and those that are group agents – and argue that only the latter should be treated as persons. Following this, I discuss the conditions under which associations that are part
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Digital Power and Law’s Rule Law Philos. (IF 0.8) Pub Date : 2024-06-14 Lisa M. Austin
In Law’s Rule, Gerald Postema provides a robust theoretical framework of the rule of law that technology scholars can use to analyze power in the digital world. He articulates how the rule of law can be concerned with private power, and not just public power. His emphasis on the ethos of fidelity allows us to see how the rule of law of law may be degraded in the digital era through the erosion of the
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Liberty, Secrecy, and the Right of Assessment Law Philos. (IF 0.8) Pub Date : 2024-05-10 Daniele Santoro, Manohar Kumar
In this article we argue that governmental practices of secrecy threaten the epistemic dimension of rights. We defend the view that possessing a right entitles its holder to the largest extent of available knowledge of the circumstances that may impede the enjoyment of that right. We call this the ‘epistemic entitlement’ of rights. Such an entitlement holds in ideal conditions once full transparency
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Tort Law and Contractualism Law Philos. (IF 0.8) Pub Date : 2024-04-20 Peter Chau
How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has
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Lawful, but not Really: The Dual Character of the Concept of Law Law Philos. (IF 0.8) Pub Date : 2024-04-20 Brian Flanagan, Guilherme de Almeida
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Finding Leviathan in Hegel: The Private Rule of Law and its Limits Law Philos. (IF 0.8) Pub Date : 2024-04-10 Paul Gowder
This paper uses Gerald Postema’s Law’s Rule to take up one of the most controversial questions in rule of law scholarship: whether the ideal can provide the basis for criticizing the state alone, or private individuals and entities exercising power over others as well. An account of the characteristics of states in virtue of which the rule of law licenses control over their power is developed, followed
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Why Metaphysics Matters: The Case of Property Law Law Philos. (IF 0.8) Pub Date : 2024-04-09 Ben Ohavi
Are property rights absolute? This paper attempts to reframe this question by drawing on insights from the field of social ontology. My main claim is that, even if we accept the most extreme view of the absoluteness of property rights, there are some non-normative conceptual limitations to these rights. The conceptual limitations are based on two claims about the nature of property rights and their
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Public Ownership Law Philos. (IF 0.8) Pub Date : 2024-02-12 Avihay Dorfman
The two questions I seek to address in these pages are what is public property and why does it matter. Public property, like property more generally, is a powerful legal arrangement of allocating control and use rights with respect to resources. Unlike private property, public property does not establish normative powers with which private individuals can shape their practical affairs in and around
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Paternalism at a Distance Law Philos. (IF 0.8) Pub Date : 2024-02-06 Jonathan Turner
I argue that the distance between state and citizen gives state paternalism a pro tanto advantage over paternalism between individuals. Pace Jonathan Quong, the state neither denies nor diminishes my moral status by acting on a justified negative judgment about my rational or volitional capacities. Nor does its failure to paternalize on the basis of detailed information about individuals constitute
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Kotzen, Conditional Relevancy, and the Difficulties of Cross-Disciplinary Dialogue Law Philos. (IF 0.8) Pub Date : 2024-01-27 Ronald J. Allen
Forty years ago, Vaughn Ball demonstrated that the then received notion of conditional relevance served no useful purpose, as it would only come into effect if the probability of an element were 0.0. But, if the probability of an element were 0.0, a directed verdict would be in order and so once again conditional relevancy was doing no work. I extended that analysis to include the relationship between
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Exhortative Legal Influence Law Philos. (IF 0.8) Pub Date : 2023-11-25 Crescente Molina
In this article, I offer a theoretical account of a central yet surprisingly overlooked form of legal influence or control, one that I refer to as the law’s ‘exhortative’ influence. The law exercises an ‘imperative’ influence when it purports to control agents’ behavior by imposing on them legal duties to act or refrain from acting in the legally desired or repelled way. By contrast, it exercises what
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Innate right, indeterminacy, and official discretion: A puzzle for Kantians Law Philos. (IF 0.8) Pub Date : 2023-10-19 Paul Garofalo
This paper poses a puzzle for contemporary Kantian political philosophy. Kantian political philosophers hold that the state’s purpose is to secure the conditions for people’s innate right to equal freedom, while at the same time claiming that innate right does not give a determinate set of conditions that the state is to bring about. Officials, then, have to make decisions in cases where the considerations
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The Unilateral Authority Theory of Punishment Law Philos. (IF 0.8) Pub Date : 2023-08-22 Richard Child
It is frequently argued that wrongdoers forfeit, through their wrongdoing, their previously held claim rights against being punished. But this is a mistake. Wrongdoers do not forfeit their claim rights against being punished when they violate rights. They forfeit their immunity to having their claim rights against being punished removed. The reason for this, I argue, is that when they violate rights
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THE CONTOURS OF CORPORATE MORAL AGENCY Law Philos. (IF 0.8) Pub Date : 2023-07-08 Alan Strudler
This article defends skepticism about the moral agency of corporations, arguing that even if we accept the idea that there exist group moral agents, it makes little sense to suppose that the corporation itself can qualify as such an agent. The discussion considers and rejects arguments from Philip Pettit, Peter French, and Michael Bratman. It concludes that we should not criminally prosecute corporations
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Legal Positivism and Naturalistic Explanation of Action Law Philos. (IF 0.8) Pub Date : 2023-07-05 Dan Priel
It is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two
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Harmless Discrimination, Wrongs, and Rules Law Philos. (IF 0.8) Pub Date : 2023-07-03 Anthony Sangiuliano
Discrimination is often tremendously harmful. But cases of harmless yet morally wrongful discrimination suggest that there are factors that make discrimination wrong other than its harmfulness. This article analyzes three views that resist this conclusion and poses some challenges for each. The first view appeals to unnoticed forms of harm in cases of harmless discrimination. But it counterintuitively
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Ambiguous Sovereignty: Political Judgment and the Limits of Law in Kant’s Doctrine of Right Law Philos. (IF 0.8) Pub Date : 2023-07-01 Tom Bailey
Kantian legalism is now the dominant scholarly interpretation of Kant and an important approach to legal and political philosophy in its own right. One notable feature is its construal of the relationship between law and politics decisively in law’s favour: Law subordinates politics. Political judgment is constrained by and only permissibly exercised through law. This paper opposes this subordination
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Authority, Democracy, and Legislative Intent Law Philos. (IF 0.8) Pub Date : 2023-07-01 Cosmin Vraciu
On one account, courts ought to enforce legislative intent only when the public meaning of the text of the statute is unclear, and on another account, they should enforce the intent even when the public meaning is clear. In this paper, I argue against both approaches. My argument rests on considerations related to the moral authority of the democratically made law. More specifically, I argue that those
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Stare Decisis and Equitable Power Law Philos. (IF 0.8) Pub Date : 2023-06-03 Sebastian Lewis
One of the main moral costs of stare decisis lies in the continuous possibility of entrenching morally deficient decisions in the law. Although legal systems usually make provision for dealing with morally deficient precedents, there are cases in which the legal obligation of later courts to follow one of these precedents is undefeated. This possibility affects the overall justification of stare decisis
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What Legislation Is (Not): Comparing Legislation And Legal Rulings Law Philos. (IF 0.8) Pub Date : 2023-05-10 Asif Hameed
We may sharpen our understanding of legislation by juxtaposing it with other types of legal act. John Gardner attempts to differentiate legislation from legal rulings – an unusual juxtaposition in itself – and his claims about the difference are surprising. Legal rulings are legally binding pronouncements issued by judges – eg ‘A owes B $50 in compensation’. The article queries the analysis advanced
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Ideology in the adjudication of the ECJ Law Philos. (IF 0.8) Pub Date : 2023-05-09 Aristel Skrbic
This paper analyses the adjudicative methods of the European Court of Justice (ECJ) through the concept of ideology. In part one, I discuss Tamara Ćapeta’s application of Duncan Kennedy’s conception of ideology to the ECJ. I argue it has two shortcomings, both stemming from its account of ideology: treating ideology as pertaining primarily to individual beliefs rather than institutional practices,
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Metalinguistic Negotiation in Legal Speech Law Philos. (IF 0.8) Pub Date : 2023-03-22 Bill Watson
This paper examines the role of metalinguistic negotiation in lawyers’ and judges’ speech about the law. A speaker engages in metalinguistic negotiation when the speaker uses a term to advocate for what that term should mean or how it should be used relative to context. While I doubt that legal practitioners employ metalinguistic negotiation in the ways that David Plunkett and Tim Sundell have proposed
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The Phenomenology and Ethics of P-Centricity in Mental Capacity Law Law Philos. (IF 0.8) Pub Date : 2023-03-09 Camillia Kong
Under the Mental Capacity Act 2005 (MCA) in England and Wales, the liberal commitments to subjective freedom guide obligations towards persons who do not lack capacity. For the subject of proceedings who might lack capacity (P), it is less clear as to what obligations orient best interests decision-making on their behalf. The UK Supreme Court has emphasised the centrality of ‘P-centricity’ in best
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Why Busing Voters to the Polling Station is Paying People to Vote Law Philos. (IF 0.8) Pub Date : 2023-01-24 Jørn Sønderholm, Jakob Thrane Mainz
In this paper, we argue that the widespread practice in the United States of busing voters to the polling station on Election Day is an instance of paying people to vote. We defend a definition of what it means to pay people to vote, and on this definition, busing voters to the polling station is an instance of paying people to vote. Paying people to vote is illegal according to United States federal
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Relational and Distributive Discrimination Law Philos. (IF 0.8) Pub Date : 2023-01-20 Rona Dinur
Recent philosophical accounts of discrimination face challenges in accommodating robust intuitions about the particular way in which it is wrongful—most prominently, the intuition that discriminatory actions intrinsically violate equality irrespective of their contingent consequences. The paper suggests that we understand the normative structure of discrimination in a way that is different from the
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Are Parents Fiduciaries? Law Philos. (IF 0.8) Pub Date : 2023-01-20 Scott Altman
Parents resemble trustees, conservators, and other fiduciaries; they exercise broad discretion while making choices for vulnerable people. Like other fiduciaries, parents can be tempted to neglect their duties or pursue self-interest at the expense of those they should protect. This article argues against treating parents as fiduciaries for three reasons. First, the scope of parental fiduciary duties
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Liability for Emissions without Laws or Political Institutions Law Philos. (IF 0.8) Pub Date : 2023-01-19 Göran Duus-Otterström
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The moral permissibility of banishment Law Philos. (IF 0.8) Pub Date : 2022-11-22 E. E. Sheng
This essay defends the moral permissibility, as a form of punishment, of banishment, namely the exclusion by a state of a citizen from its territory. I begin by outlining the prima facie case for banishment, consider for whom it may be appropriate, and acknowledge constraints on its permissibility. I then defend banishment against the main objections in the literature to banishment or the related measure
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Hart as an Inferentialist: The Methodological Pragmatist Insight in Hart’s Inaugural Lecture Law Philos. (IF 0.8) Pub Date : 2022-11-17 Ziyu Liu
Jurisprudes today differ in their interpretations of H.L.A. Hart’s analysis of the semantics of internal legal statements. Drawing upon the philosophy of language and metaethics to reconstruct Hart’s view, they disagree as to whether Hart should be interpreted as an expressivist or quasi-expressivist. In this paper I propose a third reconstruction, under which Hart adopted an inferentialist analysis
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Now It’s Personal: From Me to Mine to Property Rights Law Philos. (IF 0.8) Pub Date : 2022-11-14 David Shoemaker, Bas van der Vossen
Philosophical theories of property rights struggle to adequately explain the moral significance of ownership. We propose that the moral significance of property rights is due to the intersection of what we call "the extended self” and conventionally protected rights claims. The latter, drawing on conventionalist accounts of property rights, explains the social nature and flexibility of property. The
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Critical Mercy in Criminal Law Law Philos. (IF 0.8) Pub Date : 2022-11-14 Kristen Bell
Much contemporary discussion of mercy has focused on what I call ‘beneficent mercy’: compassionately sparing a person from harsh treatment that she deserves. Drawing on Seneca’s discussion of mercy, I articulate a different concept of mercy which I call ‘critical mercy’: treating a person justly when unjust social rules call for harsher treatment. Whereas beneficent mercy is grounded in recognition
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Conditional Relevance and Conditional Admissibility Law Philos. (IF 0.8) Pub Date : 2022-11-12 Matthew Kotzen
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The Internal Point of View Law Philos. (IF 0.8) Pub Date : 2022-11-09 Jeffrey Kaplan
The most discussed theory of law of the twentieth century – HLA Hart’s theory from The Concept of Law – is fundamentally psychological. It explains the existence of legal systems in terms of an attitude taken by legal officials: the internal point of view. Though much has been said about this attitude (what statements express it, what it is not, how Hart ought to have conceived of it, etc.), we nonetheless
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Response to Five Critics Law Philos. (IF 0.8) Pub Date : 2022-10-25 Yitzhak Benbaji, Daniel Statman
In response to our critics, we explain why in spite of the ad bellum breach involved in the first use of force the war agreement is still binding; why the moral symmetry to which War by Agreement subscribes benefits all parties, weak and strong; why contractarianism leaves room the for moral option of not acting within one's rights and refusing to take part in a seemingly unjust war; why contractarianism
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‘De Minimis’ and the Structure of the Criminal Trial Law Philos. (IF 0.8) Pub Date : 2022-09-28 R. A. Duff
The Model Penal Code’s ‘De Minimis’ provisions (§ 2.12) cover different kinds of case in which, for reasons of equity, a prosecution should be dismissed. An exploration of these different cases illuminates some general issues about the structure of the criminal process, and about the processes of criminalization. These include the significance of the difference between dismissing a case and acquitting
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Is there a duty not to compound injustice? Law Philos. (IF 0.8) Pub Date : 2022-08-05 Kasper Lippert-Rasmussen
In a series of excellent, recent papers, Deborah Hellman expounds the intuitively appealing idea that we have a duty not to compound injustice. Roughly, one compounds injustice when facts that obtain as a result of prior injustice form part of one’s reason for imposing further disadvantages on the victims of this prior injustice. This article identifies several complexities and problems motivating
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Lesser-Evil Justifications: A Reply to Frowe Law Philos. (IF 0.8) Pub Date : 2022-08-04 Kerah Gordon-Solmon, Theron Pummer
Sometimes one can prevent harm only by contravening rights. If the harm one can prevent is great enough, compared to the stringency of the opposing rights, then one has a lesser-evil justification to contravene the rights. Non-consequentialist orthodoxy holds that, most of the time, lesser-evil justifications add to agents’ permissible options without taking any away. Helen Frowe rejects this view
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Rights and Rules: Revisionism, Contractarianism, and the Laws of War Law Philos. (IF 0.8) Pub Date : 2022-08-03 Linda Eggert
This paper defends revisionism against a challenge: that it cannot convincingly hold that many instances of killing in war are morally wrong but should nonetheless remain legally permissible. The paper argues that we should view the relationship between the morality of war and the laws of war as analogous to the relationship between fundamental principles and rules of regulation in debates about theories
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Disagreement by War Law Philos. (IF 0.8) Pub Date : 2022-08-02 Arthur Ripstein
This review essay examines Benbaji and Statman's War by Agreement. It raises two challenges to their contractarian account of war, which seeks to show that considerations of mutual advantage can generate novel permissions. First, if such a robust justification for participation in unjust wars is available, it is not clear that any kind of agreement between states is even required; if a state can make
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Proportionality in the Liability to Compensate Law Philos. (IF 0.8) Pub Date : 2022-07-30 Todd Karhu
There is widely thought to be a proportionality constraint on harming others in self-defense, such that an act of defensive force can be impermissible because the harm it would inflict on an attacker is too great relative to the harm to the victim it would prevent. But little attention has been given to whether a corresponding constraint exists in the ethics of compensation, and, if so, what the nature
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The Institutionalisation of the Basic Validity Rule Law Philos. (IF 0.8) Pub Date : 2022-07-23 Miguel Garcia-Godinez
In a recent contribution to legal ontology, Kenneth Ehrenberg identifies a puzzle concerning the basic validity rule of legal systems: If formal institutions require a codified foundational constitutive rule, then legal systems cannot be formal institutions, since their foundational constitutive rule is necessarily an uncodified basic validity rule. To solve this puzzle, Ehrenberg suggests taking this
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Kinship, Justice, and Inheritance: The Case of ‘Rest’ in Ethiopia Law Philos. (IF 0.8) Pub Date : 2022-07-15 Kebadu Mekonnen Gebremariam
This paper argues that the inheritance of wealth must be grounded on reasons other than the defense of the testator’s right to bequeath or that of an heir’s alleged moral right to receive inheritance. It asserts that the accepted approach in anglophone political philosophy about the justice of inheritance along the framework of ‘justice in transfer’ is misguided. Taking Rest land inheritance in Ethiopia
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Coercion Without Incapacitation Law Philos. (IF 0.8) Pub Date : 2022-07-01 William R. Tadros
This essay examines why coerced conduct tends not to have the moral and legal consequences that non-coerced conduct often has. In it, I argue against the “incapacitation approach,” the view that coerced conduct tends not to result in the coercer acquiring a permission or an entitlement because the coercee is typically incapable of exercising her rights to change the coercer’s permissions or entitlements
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If You Care About a Rule, Why Weaken Its Enforcement Dimension? On a Tension in the War Convention Law Philos. (IF 0.8) Pub Date : 2022-06-30 Susanne Burri
In War by Agreement (Oxford and New York: Oxford University Press, 2019), Yitzhak Benbaji and Daniel Statman argue that the ‘war convention’ – i.e. the international laws and conventions that are widely accepted to govern the use of force between sovereign states – represents a morally binding contract. On their understanding, the war convention replaces a pre-contractual morality governed by principles
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Religious Reasons in Politics: Some Problems for the Free Marketplace Model Law Philos. (IF 0.8) Pub Date : 2022-06-22 Camilo Andres Garcia
In this paper, I critique a popular yet seldom recognized theory of the political role of religious reasons. According to this theory, the Free Marketplace model, laws may be justified on religious reasons as long as such laws do not impinge on rights. I argue that this theory is internally contradictory and can only be defended by either accepting normatively unacceptable consequences, or resorting
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Ethics, Force, and Power: On the Political Preconditions of Just War Law Philos. (IF 0.8) Pub Date : 2022-06-20 Christopher J. Finlay
Benbaji and Statman’s contractarian ethics of war offers a powerful new philosophical defence of orthodox conclusions against revisionist criticism. I present a two-pronged argument in reply. First, contractarianism yields what I call ‘decent war theory,’ a theory in which war between decent states is paradigmatic. I argue, by contrast, that states should treat wars against indecent states as paradigmatic
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Stability, Autonomy, and the Foundations of Political Liberalism Law Philos. (IF 0.8) Pub Date : 2022-04-19 Anthony Taylor
An attractive form of social stability is realized when the members of a well-ordered society give that society’s organizing principles their free and reflective endorsement. However, many political philosophers are skeptical that there is any requirement to show that their principles would engender this kind of stability. This skepticism is at the root of a number of objections to political liberalism
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‘But You Could Have Hurt Me!’: Risk and Harm Law Philos. (IF 0.8) Pub Date : 2022-04-18 Joseph Bowen
This paper answers two questions. First, on the assumption that risk of harm is of moral significance, does risk’s moral significance lay in its being harmful? Second, is risk of harm itself harmful? I argue that either risk is not harmful or that risk is harmful only in a small range of cases. If risk is not harmful, and yet risk is of moral significance, risk’s moral significance cannot lie in its
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How Resilient is the War Contract? Law Philos. (IF 0.8) Pub Date : 2022-03-25 Gerald Lang
In War By Agreement, Yitzhak Benbaji and Daniel Statman argue that the morality of war can be governed by a freely accepted agreement over the principles that apply to it. This war contract supersedes the application of the principles of everyday morality to war, thus defying ‘revisionist’ approaches to war, and it upholds a recognizable version of traditional just war theory. This article argues for
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On Normative Redundancies and Conflicts: A Material Approach Law Philos. (IF 0.8) Pub Date : 2022-03-21 Federico Szczaranski
The challenges that normative redundancies and normative conflicts pose to legal theory have been traditionally addressed by either altering the rules that trigger them, or by including preference rules that deactivate them. As an alternative to these routes, this paper argues that the problems with both redundancies and conflicts only arise as a consequence of a mistaken understanding of legal reasoning