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  1. The Law From Wergild to the Postmodern: Thinking of Restorative Justice.Chatterjee Subhasis Chattopadhyay - manuscript
    This is part of a proposed monograph on the Law, and jurisprudence and is to be used for understanding punishment through wergild to the early Modern and to even the post-modern. The paper is just a draft and in the future will be published as a monograph.
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  2. The Pragmatist School in Analytic Jurisprudence.Raff Donelson - forthcoming - Wiley-Online-Library: Philosophical Issues.
    Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not conceive of themselves (...)
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  3. The Law of Laws.Pavlos Eleftheriadis - forthcoming - Transnational Legal Theory 1 (3).
    How can legal orders coexist? Contemporary lawyers and philosophers frequently accept that a legal system operates under its own terms and is shaped by its own participants. Any problems posed by the plurality of legal orders in the world are to be dealt with by each legal order separately. So persons that are caught in transnational disputes because they are subject to two or more jurisdictions, have recourse to private international law, which is always part of domestic law, i.e. the (...)
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  4. Practical Reasons and Interpretation of Customary International Law.Kostiantyn Gorobets - forthcoming - In Panos Merkouris, Jörg Kammerhofer & Noora Arjärvi (eds.), The Theory and Philosophy of Customary International Law and its Interpretation. Cambridge, UK:
    When we say that we interpret customary international law, what is this thing that we actually interpret? Depending on how we answer this question, our view on interpretative methodology will change. It seems that the most promising approach is to say that interpretation of customary international law is an interpretation of certain legal practices. However, here we also encounter some problems. The dominant doctrine of customary international law requiring state practice and opinio juris assumes that only by adding a psychological (...)
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  5. Responding to the Over-Inclusiveness Objection to Hart’s Theory of Law: A Causal Approach.Jan Mihal - 2021 - Jurisprudence 12 (2):175-199.
    Hart’s account of law has long been acknowledged to be vulnerable to counterexamples which show that it is over-inclusive, since organisations such as private clubs, trade unions, and the mafia sat...
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  6. Law and Coercion: Some Clarification.Lucas Miotto - 2021 - Ratio Juris 34 (1):74-87.
    The relationship between law and coercion has been, and still is, a central topic in legal philosophy. Despite this, discussion about it is immersed in confusion. Some philosophers have noticed this, but hardly any work has been done to attempt to solve or even identify the confusions. This paper aims to fill this gap. Here I propose distinctions and qualifications that help us clarify the relationship between law and coercion and avoid confusion. Building on the clarificatory work, I then argue (...)
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  7. From Angels to Humans: Law, Coercion, and the Society of Angels Thought Experiment.Lucas Miotto - 2021 - Law and Philosophy 40 (3):277-303.
    Whether legal systems are necessarily coercive raises normative concerns. Coercion carries a presumption of illegitimacy and a special justificatory burden. If legal systems are necessarily coercive, coerciveness necessarily taints our legal institutions. Traditionally, legal systems have been regarded as contingently coercive. This view is mainly supported by the society of angels thought experiment. For the past few years, however, this traditional view has been under attack. Critics have challenged the reliability of the thought experiment and have urged us to centre (...)
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  8. The Nature and Value of Vagueness in the Law.Hrafn Asgeirsson - 2020 - Oxford: Hart Publishing.
    Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague (...)
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  9. Veřejný rozum a právo [Public Reason and Law].Pavel Dufek - 2020 - In Tomáš Sobek & Martin Hapla (eds.), Filosofie práva [Philosophy of Law]. Brno, Czechia: pp. 227–254.
    The chapter explores the ways in which philosophical thinking about public reason and public justification can shed light on some deep issues regarding the legitimacy or purpose of law, as well as shallower yet no less important questions of constitutional engineering and institutional desing.
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  10. Law and Moral Justification.Andrea Faggion - 2020 - Kriterion: Journal of Philosophy 61 (145):55-72.
    ABSTRACT Many prominent legal philosophers believe that law makes some type of moral claim in virtue of its nature. Although the law is not an intelligent agent, the attribution of a claim to law does not need to be as mysterious as some theorists believe. It means that law-making and law- applying acts are intelligible only in the light of a certain presupposition, even if a lawmaker or a law-applier subjectively disbelieves the content of that presupposition. In this paper, I (...)
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  11. A Kantian Interpretation of Kelsen’s Basic Norm.Mario García Berger - 2020 - Ratio Juris 33 (1):35-48.
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  12. Legality’s Law’s Empire.Nevin Johnson - 2020 - Law and Philosophy 39 (3):325-349.
    Scott Shapiro’s Legality argues the positivist Planning Theory of law meets the anti-positivist challenge posed by the argument from theoretical disagreements about law in Ronald Dworkin’s Law’s Empire. Legality equates theoretical disagreements with what Shapiro calls meta-interpretive disagreements, and then offers a legal theory of meta-interpretation that purportedly accounts for the existence of meta-interpretive disagreements by showing how it is rational or intelligible for legal actors to have such disagreements. This paper argues Legality misconstrues Law’s Empire. The true challenge of (...)
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  13. On the Connection Between Law and Morality: Some Doubts About Robert Alexy’s View.Peter Koller - 2020 - Ratio Juris 33 (1):24-34.
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  14. Hobbes’s Third Jurisprudence: Legal Pragmatism and the Dualist Menace.Benjamin L. S. Nelson - 2020 - Canadian Journal of Law and Jurisprudence 33 (1).
    This paper explores the possibility that Hobbesian jurisprudence is best understood as a ‘third way’ in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential ‘third theories’ of law -- legal pragmatism and legal dualism -- and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue (...)
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  15. Hayek Versus Trump: The Radical Right’s Road to Serfdom.Aris Trantidis & Nick Cowen - 2020 - Polity 52 (2):159-188.
    Hayek’s The Road to Serfdom has been interpreted as a general warning against state intervention in the economy.1 We review this argument in conjunction with Hayek’s later work and discern an institutional thesis about which forms of state intervention and economic institutions could threaten personal and political freedom. Economic institutions pose a threat if they allow for coercive interventions, as described by Hayek in The Constitution of Liberty: by giving someone the power to force others to serve one’s will by (...)
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  16. On the Nature of Legal Normativity, 37 Revus 83-91 (2019).Brian Bix - 2019 - Revus. Journal for Constitutional Theory and Philosophy of Law / Revija Za Ustavno Teorijo in Filozofijo Prava 37:83-91.
    In this response to eight commentaries on my article “Kelsen, Hart, and legal normativity” I clarify some points in my original analysis and agree with some comments regarding work that still needs to be done. In particular, I attempt to distinguish my position from both Berkeleyan idealism and mere subjective perception. I agree with the commentators who urge that more must be done to analyze the nature of normativity in general, and legal normativity in particular.
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  17. Law-Determination as Grounding: A Common Grounding Framework for Jurisprudence.Samuele Chilovi & George Pavlakos - 2019 - Legal Theory 25 (1):53-76.
    Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination (Greenberg 2004, (...)
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  18. The Rule of Good Law: Form, Substance and Fundamental Rights.Michael P. Foran - 2019 - Cambridge Law Journal 78 (3):570-595.
    This paper explores the effect that conformity to the rule of law has on the ends which might legitimately be pursued within a legal system. The neat distinction between formal and substantive conceptions of the rule of law will be challenged: even apparently formal conceptions necessarily affect the content of law and necessarily entail the protection of certain fundamental rights. What remains of the formal/substantive dichotomy is, in fact, a distinction between conceptions of the rule of law which guarantee the (...)
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  19. Agamben - (Im)Potentiality of Law and Politics.Vanja Grujic - 2019 - Revista de Direito Constitucional and Econômico 1 (1):248-270.
    Placed between constituting and constituted power, homo sacer reveals the state of exception, which through sovereign ban, is kept both inside and outside the law. Agamben’s latest political and legal philosophy is based upon this concept. As the victim of sovereignty, homo sacer unfolds the paradox of sovereign power, criticiz- ing its fundaments and showing the emptiness of law. However, for potentiality which is at the centre of Agamben’s argument, we need to look not only outside sovereignty and sovereign power, (...)
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  20. On the (Methodological) Future of Law and Economics. The Uneasy Burden of Value Judgments and Normativity.Paolo Silvestri - 2019 - Global Jurist 19 (3):1-17.
    Taking as its starting-point Guido Calabresi’s latest book – The Future of Law and Economics – the present article aims to explore the often neglected issue of value judgments and normativity in Law and Economics. I will show the importance of enquiring Calabresi’s methodological distinction between Law and Economics and Economic Analysis of Law and the related bilateralism thesis in order to understand the problematic relationship between methodological value judgments and ethical value judgments, the ‘distance’ between Calabresi and Posner and (...)
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  21. The Road Not Taken – Reading Calabresi’s “The Future of Law and Economics”.Paolo Silvestri - 2019 - Global Jurist 19 (3):1-7.
    The publication of Guido Calabresi’s book “The Future of Law and Economics” has drawn a substantial amount of attention among law and economics scholars. We thought that the best way to devote special attention to this book was to devote a Special issue to it. This article situates Calabresi’s book among other reflections on the future of the discipline, introduces and explains the reasons behind this Special issue and discuss the organization and content of it. -/- We emphasize how Calabresi’s (...)
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  22. Why Politics Matters: A Review of Why Law Matters. [REVIEW]James Allan - 2018 - Jurisprudence 9 (1):132-137.
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  23. The Illuminati Problem and Rules of Recognition.Mikołaj Barczentewicz - 2018 - Oxford Journal of Legal Studies 38 (3):500-527.
    How to distinguish law from non-legal but systematic and rule-guided practices of legal officials? This issue features prominently in the debate on ‘positive originalism’ in US constitutional law, and in similar fundamental controversies in other legal orders. I take it as a question about content and constitution of ultimate rules of recognition. Legal philosophers have been too quick in dealing with this problem. I argue that there is more space to claim that non-officials have a constitutive relationship with the content (...)
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  24. Kelsen, Hart, and Legal Normativity.Brian Bix - 2018 - Revus. Journal for Constitutional Theory and Philosophy of Law / Revija Za Ustavno Teorijo in Filozofijo Prava 34:25-42.
    This article focuses on issues relating to legal normativity, emphasizing the way these matters have been elaborated in the works of Kelsen and Hart and later commentators on their theories. First, in Section 2, the author offers a view regarding the nature of law and legal normativity focusing on Kelsen's work (at least one reasonable reading of it). The argument is that the Basic Norm is presupposed when a citizen chooses to read the actions of legal officials in a normative (...)
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  25. Law is an Institution an Artifact and a Practice.Kenneth M. Ehrenberg - 2018 - In Luka Burazin, Kenneth Einar Himma & Corrado Roversi (eds.), Law as an Artifact. Oxford: Oxford University Press. pp. 177-191.
    I have argued that law is a genre of institutionalized abstract artifact, meaning that laws are purposive products of human creation designed to signal norms of behavior with respect to them. Its institutional nature is seen in the fact that it is a system of artificial statuses that convey deontic powers to status holders understood in their institutional roles. Following Searle in explaining institutions, however, is also to see the institution as the 'continuing possibility of a practice.' Hence there is (...)
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  26. On the Scope, Jurisdiction, and Application of Rationality and the Law.Daniel Fogal - 2018 - Problema 12:21-57.
  27. Legal Directives and Practical Reasons.Noam Gur - 2018 - Oxford University Press.
    This book investigates law's interaction with practical reasons. What difference can legal requirements—e.g. traffic rules, tax laws, or work safety regulations—make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. -/- At the outset, two (...)
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  28. Would Many People Obey Non-Coercive Law?Robert C. Hughes - 2018 - Jurisprudence 9 (2):361-367.
    In response to Frederick Schauer's book The Force of Law, I argue that the available evidence indicates that non-coercive law could influence many people's behavior. It may sometimes be best to forgo coercive enforcement of an important law.
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  29. Preface to a Philosophy of Legal Information.Kevin Lee - 2018 - SMU Science and Technology Law Review 20.
    This essay introduces the philosophy of legal information (PLI), which is a response to the radical changes brought about in philosophy by the information revolution. It reviews in some detail the work of Luciano Floridi, who is an influential advocate for an information turn in philosophy that he calls the philosophy of information (PI). Floridi proposes that philosophers investigate the conceptual nature of information as it currently exists across multiple disciplines. He shows how a focus on the informational nature of (...)
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  30. Introduction: Symposium on Paul Gowder, the Rule of Law in the Real World.Matthew J. Lister - 2018 - St. Louis University Law Journal 62 (2):287-91.
    This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.
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  31. L’indignation, le mépris et le pardon dans l’émergence du cadre légal d’Occupy Geneva.Frédéric Minner - 2018 - Revue Européenne des Sciences Sociales 56 (2):133-159.
    Cet article s’intéresse au problème de la maintenance, c’est-à-dire au moment où les membres d’un collectif social tentent d’assurer dans le temps l’existence de leur collectif en instituant des règles pour réguler leurs comportements. Ce problème se pose avec acuité lorsque certains membres ne respectent pas ces règles communes. Pour maintenir la coopération sociale, les membres peuvent décider d’instituer des règles secondaires visant à sanctionner les transgressions des règles primaires déjà établies. La maintenance d’un collectif peut ainsi reposer sur l’émergence (...)
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  32. Detachment and Deontic Language in Law.Robert Mullins - 2018 - Law and Philosophy 37 (4):351-384.
    Some legal philosophers regard the use of deontic language to describe the law as philosophically significant. Joseph Raz argues that it gives rise to ‘the problem of normativity of law’. He develops an account of what he calls ‘detached’ legal statements to resolve the problem. Unfortunately, Raz’s account is difficult to reconcile with the orthodox semantics of deontic language. The article offers a revised account of the distinction between committed and detached legal statements. It argues that deontic statements carry a (...)
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  33. The Meaning of Rights.Anuj Puri - 2018 - John Marshall Law Review 51 (3):503-528.
    In an increasingly inward-looking world governed by populist governments, existing theories of rights are struggling to protect and expand individual rights. This failure can be attributed both to the present conception of rights as well as the absence of a unifying theme to address the existence and conflict of rights. In the present paper I argue that this unifying theme, which is necessary for protection and expansion of individual rights, is provided by “meaning” in an existential and linguistic sense. I (...)
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  34. Direito como título de reconhecimento: uma concepção hegeliana.Ítalo Alves - 2017 - Synesis 9 (2):49-70.
    Neste artigo, trago a uma maior explicitação o conceito de direito da Filosofia do Direito de Hegel, buscando reabilitá-lo como alternativa às concepções jusnaturalistas e juspositivistas tradicionais. Busco uma resposta à questão “o que significa ter um direito?” a partir da Filosofia do Direito hegeliana. Questiono pela gênese e locus do direito e argumento que este se origina de uma relação de reconhecimento recíproco intersubjetivo, posteriormente consubstanciando-se objetivamente na eticidade, por meio das instituições sociais. A partir das conclusões de que (...)
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  35. Legal Institutionalism: Capitalism and the Constitutive Role of Law.Simon Deakin, David Gindis, Geoffrey M. Hodgson, Kainan Huang & Katharina Pistor - 2017 - Journal of Comparative Economics 45 (1):188-20.
    Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts (...)
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  36. Applied Political and Legal Philosophy.Michelle Madden Dempsey & Matthew J. Lister - 2017 - In Kimberley Brownlee, Tony Coady & Kasper Lippert-Rasmussen (eds.), The Blackwell Companion to Applied Philosophy. Oxford: Wiley-Blackwell. pp. 313-327.
    This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily (...)
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  37. Los criterios de la corrección en la teoría del razonamientos jurídico de Neil MacCormick.Miguel Garcia-Godinez - 2017 - Mexico City, CDMX, Mexico: CEC-SCJN.
  38. Does the Emolument Rule Exist for the President?Stephen Kershnar - 2017 - International Journal of Applied Philosophy 31 (1):31-43.
    In this article, I argue that with regard to the President, the Emoluments Clause is not law. I argue for this on the basis of two premises. First, if something is a law, then it has a legal remedy. Second, EC does not have a legal remedy. This premise rests on one or more of the following assumptions: EC does not apply to the President; if EC were to apply to the President, it does not provide a remedy; or, if (...)
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  39. Kuznetsov V. From studying theoretical physics to philosophical modeling scientific theories: Under influence of Pavel Kopnin and his school.Volodymyr Kuznetsov - 2017 - ФІЛОСОФСЬКІ ДІАЛОГИ’2016 ІСТОРІЯ ТА СУЧАСНІСТЬ У НАУКОВИХ РОЗМИСЛАХ ІНСТИТУТУ ФІЛОСОФІЇ 11:62-92.
    The paper explicates the stages of the author’s philosophical evolution in the light of Kopnin’s ideas and heritage. Starting from Kopnin’s understanding of dialectical materialism, the author has stated that category transformations of physics has opened from conceptualization of immutability to mutability and then to interaction, evolvement and emergence. He has connected the problem of physical cognition universals with an elaboration of the specific system of tools and methods of identifying, individuating and distinguishing objects from a scientific theory domain. The (...)
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  40. Guest Editor’s Introduction to Symposium on Allen Buchanan, The Heart of Human Rights.Lister Matthew - 2017 - Law and Philosophy 36 (2):115-120.
    For many years now Allen Buchanan has been one of the most important theorists working on the philosophy of human rights, producing a large number of papers and two books significantly devoted to the topic. In the work under consideration in this symposium, Buchanan breaks new ground by examining what he claims to be the “heart” of international human rights practice – the international legal human rights (“ILHR”) system, subjecting it to moral and philosophical analysis and criticism. Buchanan's book was (...)
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  41. 20th-Century Bulgarian Philosophy of Law: From Critical Acceptance of Kant’s Ideas to the Logic of Legal Reasoning.Vihren Bouzov - 2016 - In Enrico Pattaro & C. Roversi (eds.), A Treatise of Legal Philosophy and General Jurisprudence. V.12 (1), Legal Philosophy in the Twentieth Century: The Civil Law World. pp. 681-690.
    My analysis here is an attempt to bring out the main through-line in the development of Bulgarian philosophy of law today. A proper account of Bulgarian philosophy of law in the 20th century requires an attempt to find, on the one hand, a solution to epistemological and methodological problems in law and, on the other, a clear-cut influence of the Kantian critical tradition. Bulgarian philosophy of law follows a complicated path, ranging from acceptance and revision of Kantian philosophy to the (...)
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  42. Ontology and Reason Giving in Law.Kenneth M. Ehrenberg - 2016 - In Pawel Banas, Adam Dyrda & Tomasz Gizbert-Studnicki (eds.), Metaphilosophy of Law. Hart. pp. 147-158.
  43. The Functions of Law.Kenneth M. Ehrenberg - 2016 - Oxford University Press.
    What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (...)
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  44. The Rule of Law in the Real World.Paul Gowder - 2016 - New York, USA: Cambridge University Press.
    In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, how they have sustained (...)
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  45. Autonomous Weapons and the Nature of Law and Morality: How Rule-of-Law-Values Require Automation of the Rule of Law.Duncan MacIntosh - 2016 - Temple International and Comparative Law Journal 30 (1):99-117.
    While Autonomous Weapons Systems have obvious military advantages, there are prima facie moral objections to using them. By way of general reply to these objections, I point out similarities between the structure of law and morality on the one hand and of automata on the other. I argue that these, plus the fact that automata can be designed to lack the biases and other failings of humans, require us to automate the formulation, administration, and enforcement of law as much as (...)
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  46. Law and Coercion Introduction.Lucas Miotto - 2016 - Jurisprudence 7 (3):523-524.
    Introduction to the Law and Coercion Symposium.
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  47. The Meaning of Law.Anuj Puri - 2016 - John Marshall Law Review 49 (4):1077-1102.
    Human beings intrinsically seek meaning. We readily accept and absorb a proposition or even a legal stipulation, if it is meaningful. This human trait coupled with law’s ability to create, select and infuse meaning ensures that in case of conflict between rights, those rights that are perceived to be ‘more meaningful’ triumph over those that are viewed to be less so. Hence, it is important to study the relationship between meaning and law and its impact on rights and identity of (...)
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  48. Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law.Jacob Weinrib - 2016 - Cambridge University Press.
    In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (...)
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  49. The Sovereignty of Law: Freedom, Constitution, and Common Law.T. R. S. Allan - 2015 - Oxford University Press UK.
    The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles.
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  50. A Foundation for the Conception of Law as Practical Reason.Stefano Bertea - 2015 - Law and Philosophy 34 (1):55-88.
    This essay discusses a foundation of the connection argued to exist between law and practical reason that has proved to be highly influential and debated in contemporary legal philosophy – Alexy’s. After reconstructing Alexy’s conception of practical reason as well as its foundation, I criticise the weak transcendental-pragmatic argument Alexy uses to ground the authority of practical reason. This argument, I argue, can only show why occasionally, as opposed to necessarily, we ought to follow the guidance of practical reason, and (...)
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