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  1. Was Austin Right After All? On the Role of Sanctions in a Theory of Law.Frederick Schauer - 2010 - Ratio Juris 23 (1):1-21.
    In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...)
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  • Lost in the System or Lost in Translation? The Exchanges Between Hart and Ross.E. N. G. Svein - 2011 - Ratio Juris 24 (2):194-246.
    According to the received opinion there is a theoretical incompatibility between Herbert Hart's The Concept of Law and Alf Ross's On Law and Justice, and, according to the received opinion, it stems above all from Hart's emphasis on the internal point of view. The present paper argues that this reading is mistaken. The Concept of Law does not go beyond On Law and Justice in so far as both present arguments to the effect that law is based on a shared (...)
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  • Lost in the System or Lost in Translation? The Exchanges Between Hart and Ross.Svein Eng - 2011 - Ratio Juris 24 (2):194-246.
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  • Form and Formalism: The View From Legal Theory.Brian Bix - 2007 - Ratio Juris 20 (1):45-55.
  • Exclusive Legal Positivism and Legal Autopoiesis: Towards a Theory of Dialectical Positivism.Oles Andriychuk - 2015 - Rechtstheorie 46 (1):37-70.
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  • Dworkin's Theoretical Disagreement Argument.Barbara Baum Levenbook - 2015 - Philosophy Compass 10 (1):1-9.
    Dworkin's theoretical disagreement argument, developed in Law's Empire, is presented in that work as the motivator for his interpretive account of law. Like Dworkin's earlier arguments critical of legal positivism, the argument from theoretical disagreement has generated a lively exchange with legal positivists. It has motivated three of them to develop innovative positivist positions. In its original guise, the argument from theoretical disagreement is presented as ‘the semantic sting argument’. However, the argument from theoretical disagreement has more than one version. (...)
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  • The Purpose of Legal Theory: Some Problems with Joseph Raz’s View. [REVIEW]Paula Gaido - 2011 - Law and Philosophy 30 (6):685-698.
    This article seeks to clarify Joseph Raz’s contention that the task of the legal theorist is to explain the nature of law, rather than the concept of law. For Raz, to explain the nature of law is to explain the necessary properties that constitute it, those which if absent law would cease to be what it is. The first issue arises regarding his ambiguous usage of the expression “necessary property”. Concurrently Raz affirms that the legal theorist has the following tasks: (...)
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  • Getting Into Mischief: On What It Means to Appeal to the U.S. Constitution.Daniel Frost - 2015 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 28 (2):267-287.
    In this chapter I seek to rehabilitate and elaborate the so-called “mischief rule” of English law. I begin by interrogating two views of legal and constitutional interpretation which make symmetrical mistakes about legal interpretation: Larry Alexander and Emily Sherwin’s view in Demystifying Legal Reasoning and Jack Balkin’s in Living Originalism. Against these views I argue that the appropriate interpretation of laws is guided by the “mischief” the legislators were trying to remedy when they created the law and by what the (...)
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  • How a Statute Applies.Barbara Baum Levenbook - 2006 - Legal Theory 12 (1):71-112.
    This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting (...)
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  • Excuses in Law and in Morality: A Response to Marcia Baron. [REVIEW]Jeremy Horder - 2007 - Criminal Law and Philosophy 1 (1):41-47.
    In this analysis of Marcia Baron’s account of excuses, I seek to do two things. I try to draw out the nature of the distinction between forgiving and excusing. I also defend the distinction between excuses (like duress), and denials of responsibility (like insanity).
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  • Incorporationism, Conventionality, and the Practical Difference Thesis: Jules L. Coleman.Jules L. Coleman - 1998 - Legal Theory 4 (4):381-425.
    H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald (...)
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  • Negotiating the Meaning of “Law”: The Metalinguistic Dimension of the Dispute Over Legal Positivism.David Plunkett - 2016 - Legal Theory 22 (3-4):205-275.
    One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, what positivists say (...)
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