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Presently Absent, or Absently Present? The Curious Condition of Natural Law Am. J. Jurisprud. Pub Date : 2022-04-29 Steven D Smith
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The Dual Nature Thesis as a Cornerstone of Jurisprudence Am. J. Jurisprud. Pub Date : 2022-04-23 Stefano Bertea
Abstract: In this work I defend the view that the “dual nature thesis” (as I refer to the claim that law’s institutional existence does not rule out its robust normativity, both components being essential to it) stands as a cornerstone of jurisprudence, in the sense that there cannot be any general theory of law that can afford to do away with it. Defending this stance requires me to first characterize
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Subsidiarity and the Criminal Jury Am. J. Jurisprud. Pub Date : 2022-04-21 Michael Plaxton
Abstract The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does
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Fictions, Lies, and the Authority of Law Steven D. Smith Am. J. Jurisprud. Pub Date : 2022-04-20 R George Wright
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Conditions, Fictions and the Basic Norm Am. J. Jurisprud. Pub Date : 2021-12-01 Kristin Y Albrecht
Abstract: This paper reflects on Christoph Kletzer’s absolute positivism and puts a focus on a view of the basic norm that grounds the validity of law in the law itself. I will try to explain the significance of this idea against the backdrop of Hans Kelsen’s transformation of the basic norm from a “hypothesis” to a “fiction.” I shall argue that the goal of an ultimate foundation of the objective validity
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Permissions, Deontic Voids, and the Karamazov Argument Am. J. Jurisprud. Pub Date : 2021-12-01 Michael S Green
Abstract: This essay criticizes three positions concerning permissions taken by Christoph Kletzer in his book The Idea of a Pure Theory of Law. First, Kletzer argues that Hans Kelsen should have understood X has having a legal obligation to φ if and only if someone else is permitted (rather than empowered) to exercise force upon X for not-φ-ing. Kelsen in fact had good reasons to speak of empowerment
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The End of the Affair Reviewing Joel Harrison, Post-Liberal Religious Liberty: Forming Communities of Charity Am. J. Jurisprud. Pub Date : 2021-12-01 Marc O DeGirolami
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A Pure Theory with a Naturalistic Fallacy? A Critique of Kletzer’s Reformulation Am. J. Jurisprud. Pub Date : 2021-11-30 Alexander Somek
Abstract: Kletzer’s book is the most important and most original contribution to the project of the Pure Theory of law that we have seen in decades. The reformulation that is offered by Kletzer raises the question, however, whether it is also consistent with Kelsen’s original project. This may be doubted, for it is to be feared that Kletzer’s theory involves a variety of the naturalistic fallacy and
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Kelsen, Kletzer, and the Differentiation of Law Am. J. Jurisprud. Pub Date : 2021-11-29 Frederick Schauer
Abstract: The differentiation of law is a pervasive and crucially important topic. Although H.L.A. Hart and others have stressed how law resembles games and other institutions, Hans Kelsen’s focus on law as a “specific” social technique represents a needed focus on what makes law different, or special. Christoph Kletzer admirably follows Kelsen in focusing and what makes law unique, and Kletzer’s claim
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Religion as a Basic Human Good Am. J. Jurisprud. Pub Date : 2021-11-20 Thomas D Howes
Abstract: For the sake of defending the political-ethical legitimacy of religious exemptions, this article analyzes what contemporary natural law theorists call the good of religion—harmony with the transcendent source of existence and meaning. This good serves as a principle in practical judgments, not as a premise in a deductive argument, but as an end of action. Practical familiarity and explicit
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The New Formalism in Private Law Am. J. Jurisprud. Pub Date : 2021-10-26 Paul B Miller
Abstract: Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed (in part) from an internal point of view; and a conviction that functionalist and conceptual analyses
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Law and the Limits of Sovereign Power Am. J. Jurisprud. Pub Date : 2021-06-01 Maris Köpcke
Abstract: Barber’s recent book The Principles of Constitutionalism argues that state sovereignty is not subject to legal limits, from either domestic or supranational law. It further suggests that state sovereignty is not subject to moral limits either. This paper argues that this is an unsound view of state sovereignty and that Barber’s work contains valuable resources for developing an alternative
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Acknowledging the Body: The Challenge for Public Bioethics Am. J. Jurisprud. Pub Date : 2021-06-01 Christopher Tollefsen
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Echoes of the Ius Commune Am. J. Jurisprud. Pub Date : 2021-06-01 Adrian Vermeule
Abstract Professor Nicholas (Nick) Barber’s learned and intelligent book on The Principles of Constitutionalism is best understood as an exercise in Aristotelian naturalism and moral and constitutional realism, of a sort much more characteristic of the classical law than of modern positivism. In view of the book’s implicitly classical approach, it would have benefited, at a number of key junctures
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Law, Morality, and the One-System View: A Response to T. R. S. Allan Am. J. Jurisprud. Pub Date : 2021-06-01 Felipe Jiménez
Abstract: This is a response to a recent article by T. R. S. Allan. Allan makes several insightful observations about law and legal practice. As Allan correctly notes, (i) the moral evaluation of legal rules and institutions is carried out within legal practice and its traditions, and therefore the view that we can come up with practice-independent moral principles to evaluate the law is at least dubious;
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The Dual Reality of No-Rights Am. J. Jurisprud. Pub Date : 2021-06-01 Mark McBride
Abstract: In a fascinating recent debate in the pages of this journal, several legal philosophers have clashed over the very existence and nature of the deontic position of Hohfeldian no-rights. While the debate has many strands, and has become increasingly intricate, I want to focus on one—or, the—central strand, a strand the importance of which cannot sensibly be questioned. Countering Andrew Halpin
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The State and Its People Am. J. Jurisprud. Pub Date : 2021-06-01 Richard Ekins
Abstract This article considers the relationship between the state and its people, reflecting on Nick Barber’s principles of constitutionalism. The joint intention of the people is central to the social reality of the good state, which is an institutionally ordered people. Other forms of political order, including empire, are possible, but there is good reason for a people to form a state and to exercise
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Subsidiarity as the Preference for Proximity Am. J. Jurisprud. Pub Date : 2021-06-01 Maria Cahill
Abstract This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber’s book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment
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The Purpose of a State Am. J. Jurisprud. Pub Date : 2021-06-01 Timothy Endicott
Abstract: In a contribution to a symposium on Nick Barber’s book, The Principles of Constitutionalism, I argue that Barber is right to explain the principles of constitutionalism by reference to the purpose of a state, but I defend a restatement of that purpose. Barber says that it is to advance the well-being of the citizens. I argue that the purpose is more open-ended: it is to make the political
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Is Protestant Interpretation an Acceptable Attitude Toward Normative Social Practices? An Analysis of Dworkin and Postema Am. J. Jurisprud. Pub Date : 2021-05-31 Thomas Bustamante
Abstract: Gerald Postema raised a powerful challenge to Ronald Dworkin’s theory of interpretation. By allowing each interpreter to make her own judgment about the content of a social norm, Dworkinian interpretation becomes insufficiently intersubjective and insufficiently political. In previous work, I argued that this criticism must be rejected because Postema’s own account of law, analogical reasoning
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The Separation of Powers in The Principles of Constitutionalism Am. J. Jurisprud. Pub Date : 2021-05-26 Philip Sales
Abstract Focusing on Barber’s account of the separation of powers, this essay questions the solidity of the foundations for the constitutional principles he articulates. It argues that his attempt at universalism and his account of the substantive content of the principles come apart. Barber’s attempt to ground universal principles in an account of the nature of the state is questionable, because that
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No-Right and its Correlative Am. J. Jurisprud. Pub Date : 2020-12-01 Andrew Halpin
Abstract: This article aims to dispel the confusion over no-right by drawing attention to three straightforward points, and by examining a neglected source of complexity. The former embrace the practical significance of a no-right within Hohfeld’s scheme; the important difference between the practical significance of a normative position and the theoretical status of the concept representing it; and
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On Tradition and the Conservation of Equity Am. J. Jurisprud. Pub Date : 2020-10-28 Irit Samet
Abstract: This paper explores the question whether the normativity of tradition gives us reasons to preserve the norms of equity (more or less) in their historical form, i.e., as separate from neighboring common law doctrines. The main target of the paper are arguments that call for the replacement of equity with other, arguably more successful, means for attaining the goals equity sets to achieve
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Law, Love, and Freedom: From the Sacred to the Secular Joshua Neoh. Cambridge University Press, 2019 Reviewed by Michael P. Moreland Am. J. Jurisprud. Pub Date : 2020-10-24 Michael P Moreland
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Loyalty and Disclosure in Legal Ethics Am. J. Jurisprud. Pub Date : 2020-06-01 Benjamin C Zipursky
Abstract: As fiduciaries, lawyers owe duties of loyalty to their clients, and such duties are widely understood to entail strong duties of confidentiality. This article addresses the question of whether loyalty-based duties of confidentiality preclude the legal system from imposing on lawyers duties to disclose that their clients have been engaging in financial fraud. It distinguishes two possible
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Law as a Branch of Morality: The Unity of Practice and Principle Am. J. Jurisprud. Pub Date : 2020-06-01 T R S Allan
Abstract: The article explores Dworkin’s suggestion that law and morality comprise a unified normative domain, considering similar suggestions by Greenberg and Hershovitz. It defends an interpretative approach to law, akin to Dworkin’s, against the view that the law’s content is determined by direct appeal to political morality at large, subject only to the effect of action by law-making institutions
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The Internal Limits on Fiduciary Loyalty Am. J. Jurisprud. Pub Date : 2020-05-14 Andrew S Gold
Abstract: In the abstract, the limits on a lawyer’s loyalty obligations could take several forms. For example, constraints on a fiduciary’s loyalty obligations may be derived from a correct understanding of that fiduciary’s loyalty itself. Indeed, violations might count as a form of disloyalty to the client. Alternatively, such constraints could stem from obligations owed to parties other than a lawyer’s
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Motives and Fiduciary Loyalty Am. J. Jurisprud. Pub Date : 2020-05-08 Stephen R Galoob*, Ethan J Leib*
How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of "cognitivist" account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument
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Should Lawyers Be Loyal To Clients, the Law, or Both? Am. J. Jurisprud. Pub Date : 2020-04-25 W Bradley Wendel
Loyalty is a central ideal in both legal ethics and fiduciary law, but recent theoretical approaches to legal ethics also emphasize the connection between the legal profession and the rule of law or democratic self-government. In order for lawyers to perform the role of securing relationships of mutual respect among citizens of a political community, the requirement of single-minded, partisan loyalty
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Replying to Halpin and Kramer: Agreements, Disagreements and No-Agreements Am. J. Jurisprud. Pub Date : 2019-11-25 Heidi M Hurd,Michael S Moore
Abstract The article considers in detail one criticism of an earlier paper of ours advanced by both Matthew Kramer and Andrew Halpin. This is the criticism that the content of deontic statuses (such as rights and duties) does not shift but is identical in truly correlatively-related deontic statuses. We argue that the content does shift in both our scheme and in Hohfeld's scheme for the logic of rights
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Legal Validity: The Fabric of Justice Maris Köpcke Hart Publishing, 2019 Reviewed by Christoph Kletzer Am. J. Jurisprud. Pub Date : 2019-10-31 Christoph Kletzer
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The Real Standard Picture, and How Facts Make It Law: a Response to Mark Greenberg Am. J. Jurisprud. Pub Date : 2019-10-22 Jeffrey Goldsworthy
Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture”, and it includes a “Communication Theory”. His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects
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Choosing Axioms of Correlativity Am. J. Jurisprud. Pub Date : 2019-10-05 Andrew Halpin
This article provides an axiomatic approach to distinguishing different usages of correlativity, complementing a scheme of intelligibility for correlativity developed in an earlier article. A general concern addressed in this article is how a choice of axiom affects the logic governing the relationships between those subject to legal or moral normative systems. A number of practical issues are considered
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On No-Rights and No Rights Am. J. Jurisprud. Pub Date : 2019-09-24 Matthew H Kramer
Abstract As is well known to everyone familiar with the analytical table of legal relationships propounded by the American jurist Wesley Hohfeld, one of the eight positions in the table is that of the no-right. In most discussions of Hohfeld’s overall framework, no-rights have received rather little attention. Doubtless, one reason for the relative dearth of scrutiny is that Hohfeld devised a hyphenated
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Intentions and Reflections: The Nature of Legislative Intent Revisited Am. J. Jurisprud. Pub Date : 2019-06-01 Richard Ekins
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Ekins’s Moral Assumptions and Their Impact on the Analysis of Legislation Am. J. Jurisprud. Pub Date : 2019-06-01 Francesco Ferraro,Adriano Zambon
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Pragmatic Aspects of Legislative Intent Am. J. Jurisprud. Pub Date : 2019-05-11 Damiano Canale,Francesca Poggi
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The Central Case Method in The Nature of Legislative Intent Am. J. Jurisprud. Pub Date : 2019-05-06 Andrea Dolcetti
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The Legislative Assembly and Representative Deliberation Am. J. Jurisprud. Pub Date : 2019-04-27 Chiara Valentini
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Ekins on Groups and Procedures Am. J. Jurisprud. Pub Date : 2019-04-01 Corrado Roversi,Alessio Sardo
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The Hohfeldian Analysis of Rights* Am. J. Jurisprud. Pub Date : 2018-12-01 Heidi M Hurd, Michael S Moore
This article is about Wesley Newcomb Hohfeld's famous analysis of one of the most basic concepts used in law and in ethics: the concept of a right. Hohfeld urged that usages of the term "right" are ambiguous between two senses of the word: persons have rights to do things and rights to have things done for them. Although Hohfeld died 100 years ago, he remains today one of the world’s most influential
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The Road Not Taken: On MacIntyre’s Human Rights Skepticism Am. J. Jurisprud. Pub Date : 2018-10-22 Mark D Retter
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Replies to the Symposium Articles on Liberalism With Excellence Am. J. Jurisprud. Pub Date : 2018-06-01 Matthew H Kramer
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Liberal Perfectionism, Moral Integrity, and Self-Respect Am. J. Jurisprud. Pub Date : 2018-05-09 Paul Billingham,Anthony Taylor
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Reasonable Disagreement and the Neutralist Dilemma: Abortion and circumcision in Matthew Kramer’s Liberalism with Excellence Am. J. Jurisprud. Pub Date : 2018-05-07 Clare Chambers
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Abortion, Marriage and Cognate Problems Am. J. Jurisprud. Pub Date : 2018-05-02 Cécile Laborde
In Liberalism with Excellence, Matthew Kramer argues that liberal neutrality cannot adjudicate issues such as abortion, and he intimates that this problem extends to ‘cognate problems’ such as euthanasia, animal rights and (more unexpectedly) same-sex marriage. In this Article, I examine the sense in which marriage is a cognate problem to abortion. I suggest that liberal neutrality is indeterminate
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Should I Be Proud of Liberalism with Excellence? On the Collective Grounds of Self-Respect Am. J. Jurisprud. Pub Date : 2018-04-10 Zofia Stemplowska
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Introduction to the Symposium on Matthew Kramer’s Liberalism with Excellence Am. J. Jurisprud. Pub Date : 2018-04-05 Paul Billingham,Anthony Taylor
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The Self-Respect of Democratic People Am. J. Jurisprud. Pub Date : 2018-04-02 Han van Wietmarschen
According to Matthew Kramer’s aspirational perfectionism, the state is permitted to provide funding for the arts, sciences, and culture with the aim of securing the warranted self-respect of all citizens. This paper argues that although Kramer is right to think that the state has an important role to play in the economy of recognition, his conception of this role is mistaken. I argue, first, that Kramer’s
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Distinguishing Between What is Intended and Foreseen Side Effects Am. J. Jurisprud. Pub Date : 2017-11-13 Patrick Lee
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Chang’s Parity: An Alternative Way to Challenge Balancing Am. J. Jurisprud. Pub Date : 2017-11-10 Cristóbal Caviedes
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Kramer’s Delimiting Test for Legal Rights Am. J. Jurisprud. Pub Date : 2017-11-10 David Frydrych
Professor Matthew Kramer offers a delimiting criterion or test for his Interest Theory of legal claim-rights. The ‘Minimum Sufficiency’ test is thought necessary because the Interest Theory is charged with being over-inclusive: it purportedly counts certain agents and entities as legal right-holders even though the law itself does not recognize them as such. This paper nonetheless argues that Kramer’s
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The Inherently Political Nature of Subsidiarity Am. J. Jurisprud. Pub Date : 2017-10-18 Dominic Burbidge
There is an essential contradiction in contemporary notions of subsidiarity. On the one hand, subsidiarity appeals to the ability of local bodies to engage in their own decision-making; on the other, subsidiarity employs a meta-explanation for appropriate levels of decision-making authority. In fact, therefore, the meta-explanation is assumed to provide a non-partisan basis for identifying when decision-making
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Truth and Politics: A Symposium on Peter Simpson’s Political Illiberalism: A Defense of Freedom Am. J. Jurisprud. Pub Date : 2017-06-01 Gerard V. Bradley
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Must Rawlsians be Hamiltonians? Small Government and Political Illiberalism Am. J. Jurisprud. Pub Date : 2017-05-26 Eric Beerbohm
Is liberal egalitarianism committed to big government? This response argues that the relationship may be one of convenience. It starts with Peter Simpson’s recent argument for a decentralized authority far weaker than the recognizable state. From the minimalist baseline set by Political Illiberalism, the paper then considers what elements of the state are necessary for liberal egalitarianism. What