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Frederick Schauer [55]Frederick F. Schauer [3]
  1. Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life.Frederick Schauer - 1991 - Oxford University Press.
    Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power (...)
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  2.  87
    Free Speech: A Philosophical Enquiry.Frederick Schauer - 1982 - Cambridge University Press.
  3. Formalism.Frederick Schauer - 1988 - Yale Law Journal 97 (4):509-548.
    Legal decisions and theories are frequently condemned as formalistic, yet little discussion has occurred regarding exactly what the term "'formalism" means. In this Article, Professor Schauer examines divergent uses of the term to elucidate its descriptive content. Conceptions offormalism, he argues, involve the notion that rules constrict the choice of the decisionmaker. Our aversion to formalism stems from denial that the language of rules either can or should constrict choice in this way. Yet Professor Schauer argues that this aversion to (...)
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  4. 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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  5. Free Speech: A Philosophical Enquiry.Frederick Schauer - 1984 - Philosophy and Rhetoric 17 (3):176-178.
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  6. On the Nature of the Nature of Law.Frederick Schauer - 2012 - Archiv für Rechts- Und Sozialphilosophie 98 (4):457-467.
    What is it for something to have a nature? And what is it for law to have a nature? Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones. And it is not clear that necessary truths have more explanatory value than typical truths. Especially -- (...)
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  7.  20
    The Social Construction of the Concept of Law: A Reply to Julie Dickson.Frederick Schauer - 2005 - Oxford Journal of Legal Studies 25 (3):493-501.
  8. Positivism as Pariah.Frederick Schauer - 1996 - In Robert P. George (ed.), The Autonomy of Law: Essays on Legal Positivism. Oxford University Press. pp. 31--55.
     
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  9.  80
    The Phenomenology of Speech and Harm.Frederick Schauer - 1993 - Ethics 103 (4):635-653.
  10.  42
    Free Speech on Tuesdays.Frederick Schauer - 2015 - Law and Philosophy 34 (2):119-140.
  11. Legal Fictions Revisited.Frederick Schauer - 2015 - In William Twining & Maksymilian Del Mar (eds.), Legal Fictions in Theory and Practice. Springer Verlag.
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  12. Legal Realism and Legal Reality.Frederick Schauer - 2022 - Jurisprudence 13 (1):113-120.
    Pierluigi Chiassoni’s Interpretation without Truth1 is a profoundly important book. And the book is important not only because of its deep, thorough, and impeccably fair analysis of numerous perspe...
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  13.  30
    Generality and Equality.Frederick Schauer - 1997 - Law and Philosophy 16 (3):279-297.
  14.  52
    Can Rights Be Abused?Frederick Schauer - 1981 - Philosophical Quarterly 31 (124):225-230.
  15.  83
    Bentham on Presumed Offences.Frederick Schauer - 2011 - Utilitas 23 (4):363-379.
    In the Principles of the Penal Code, Jeremy Bentham described offences that he labelled presumed or evidentiary. The conduct penalized under such offences is punished not because it is intrinsically wrong, but because it probabilistically indicates the presence of an intrinsic wrong. Bentham was sceptical of the need to create offences, but grudgingly accepted their value in light of deficiencies in procedure and the judiciary. These days the scepticism is even greater, with courts and commentators in the United States, Canada, (...)
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  16. Positivism Through Thick and Thin.Frederick Schauer - 1998 - In Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory. Oxford University Press. pp. 65--78.
     
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  17.  59
    Neuroscience, Lie-Detection, and the Law.Frederick Schauer - 2010 - Trends in Cognitive Sciences 14 (3):101-103.
  18.  5
    The Philosophy of Law: Classic and Contemporary Readings with Commentary.Frederick F. Schauer & Walter Sinnott-Armstrong - 1996 - Oxford University Press USA.
    Ideal for undergraduate courses in philosophy of law, this comprehensive anthology examines such topics as the concept of law, the dispute between natural law theorists and legal positivists, the relations between law and morality, criminal responsibility and legal punishment, the rights of the individual against the state, justice and equality, and legal evidence as compared with scientific evidence. The readings have been selected from both philosophy and law journals and include classic texts, contemporary theoretical developments, and well-known recent court cases. (...)
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  19.  39
    On the Utility of Religious Toleration.Frederick Schauer - 2016 - Criminal Law and Philosophy 10 (3):479-492.
    Brian Leiter’s Why Tolerate Religion? valuably clarifies the issues involved in granting religion-specific accommodations to laws and policies of general application. His arguments are careful, rigorous, and fair, and in rejecting the deontological arguments for religion-specific accommodations he seems to me largely correct. But when he turns to arguing against the utilitarian case for such accommodations, he employs a seemingly non-standard sense of utilitarianism in which demands of principled consistency constrain what would otherwise be utilitarian welfare-maximization. A more traditional and (...)
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  20.  80
    In Defense of Rule-Based Evidence Law – and Epistemology Too.Frederick Schauer - 2008 - Episteme 5 (3):pp. 295-305.
    Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of (...)
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  21.  19
    A Reply to Five Friends.Frederick Schauer - 2016 - Ratio Juris 29 (3):348-363.
    For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to this symposium on The Force of Law have done just that, with varying degrees of agreement and disagreement, praise and criticism. But even critical commentary, and perhaps especially critical commentary, is evidence of serious engagement. More importantly, the commentaries contained here have advanced our understanding of law in valuable ways. I respond to each in this reply, but with (...)
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  22.  53
    Is There a Psychology of Judging?Frederick Schauer - manuscript
    Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need for research (...)
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  23.  39
    Introduction.Walter Sinnott-Armstrong & Frederick Schauer - 2008 - Episteme 5 (3):251-252.
  24.  44
    The Right to Die as a Case Study in Third-Order Decisionmaking.Frederick Schauer - 1992 - Journal of Medicine and Philosophy 17 (6):573-587.
    Using the right to die and the United States Supreme Court case of Cruzan v. Director, Missouri Department of Health as exemplars, this article explores the notion of third-order decisionmaking. If first order decisionmaking is about what should happen, and second-order decisionmaking is about who should decide what should happen, then third-order decisionmaking is about who should decide who decides. This turns out to be an apt characterization of constitutionalism, which is centrally concerned with the allocation of responsibility for making (...)
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  25.  17
    In Defence of Rule-Based Evidence Law and Epistemology Too.Frederick Schauer - 2008 - Episteme 5 (3):295-305.
    Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of (...)
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  26.  74
    Can Public Figures Have Private Lives?Frederick Schauer - 2000 - Social Philosophy and Policy 17 (2):293.
    A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question I address in this essay.
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  27. Is Defeasibility an Essential Property of Law?Frederick Schauer - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
     
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  28.  45
    Fuller's Internal Point of View.Frederick Schauer - 1994 - Law and Philosophy 13 (3):285 - 312.
  29.  70
    Balancing, Subsumption, and the Constraining Role of Legal Text.Frederick Schauer - 2010 - Law and Ethics of Human Rights 4 (1):35-45.
  30.  28
    Does Simplicity Bring Liberty?Frederick Schauer - 1997 - Critical Review: A Journal of Politics and Society 11 (3):393-406.
    In Simple Rules for a Complex World, Richard Epstein claims to be focusing on legal simplicity, and on the link between legal simplicity and a legal system less intrusive on individual liberty. It turns out, however, that Epstein's conception of simplicity is itself soaked with the substantive idea of individual liberty. The consequences of this are that the claim that legal simplicity brings individual liberty becomes true by definition, and that Epstein avoids taking on the important and interesting questions of (...)
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  31.  25
    Neutrality and Judicial Review.Frederick Schauer - 2003 - Law and Philosophy 22 (s 3-4):217-240.
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  32.  18
    The Generality of Rights.Frederick Schauer - 2000 - Legal Theory 6 (3):323-336.
    Looked at from the perspective of an American constitutionalist, individualrights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority, 1 the phrase has a meaning that is now relatively well understood. In a different sense, however, the phrase might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, (...)
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  33. Introduction: The Legal Construction of Privacy.Frederick Schauer - 2001 - Social Research: An International Quarterly 68 (1):51-53.
  34.  7
    Freedom of Thought?Frederick Schauer - 2020 - Social Philosophy and Policy 37 (2):72-89.
    Freedom of thought is often explicitly protected in constitutions and human rights documents, and even more often employed as a rallying cry against state tyranny. It is not so clear, however, just what freedom of thought is, what it would be to threaten it, and how, if at all, it differs from basic liberty or freedom. This essay seeks to analyze the idea of freedom of thought, to pose some skeptical questions about its alleged independent existence, and to ask, again (...)
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  35. Balancing, Subsumption, and the Constraining Role of Legal Text: An Academic Comment On: The Construction of Constitutional Rights by Robert Alexy.Frederick Schauer - 2010 - Law and Ethics of Human Rights 4 (1).
    Robert Alexy has for many years been a prominent analyst of the role of principles in legal argumentation, and an equally prominent defender of the rationality of balancing and proportionality modes of legal decision-making. But although Alexy's defense of proportionality and balancing against charges by Jürgen Habermas and Justice Antonin Scalia that balancing is essentially an irrational process is sound, Alexy in the process is too quick to collapse the important differences between the process of balancing competing principles and the (...)
     
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  36. Incomplete Responses.Frederick Schauer - 2016 - In Nicoletta Ladavac & Christoph Bezemek (eds.), The Force of Law Reaffirmed. Springer Verlag.
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  37. On the Regulative Functions of Constitutive Rules.Frederick Schauer - 2021 - In Paolo Di Lucia & Edoardo Fittipaldi (eds.), Revisiting Searle on Deriving “Ought” From “Is”. Springer Verlag. pp. 107-119.
    John Searle’s distinction between regulative and constitutive rules is an enduringly important contribution to our understanding of rules, of language, and of rule-based or rule-bounded institutions. It is important to add to Searle’s account, however, by pointing out the regulative function of constitutive rules. Many human activities and goals can be pursued in multiple ways, but constituting the approved or official way of doing things, as is so common in law, has the effect of making alternatives less eligible, less available, (...)
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  38.  8
    Rules and Reasoning: Essays in Honour of Fred Schauer.Frederick F. Schauer & Linda Meyer (eds.) - 1999 - Hart.
    The essays in this volume are all concerned with the arguments about law as a system of rule-based decision-making,particularly the ideas advanced by legal philosopher Frederick Schauer. Schauer's work has not only helped revive interest in legal formalism but has also helped relocate arguments about the relationship between posited rules and morality. The contributors to this volume, themselves distinguished theorists, have concentrated on three aspects of Schauer's work: the nature of jurisprudential description; his theory of presumptive positivism; and the application (...)
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  39.  6
    The Normative Force of the Factual: Legal Philosophy Between is and Ought.Frederick Schauer, Christoph Bezemek & Nicoletta Bersier Ladavac (eds.) - 2019 - Springer Verlag.
    This book explores the interrelation of facts and norms. How does law originate in the first place? What lies at the roots of this phenomenon? How is it preserved? And how does it come to an end? Questions like these led Georg Jellinek to speak of the “normative force of the factual” in the early 20th century, emphasizing the human tendency to infer rules from recurring events, and to perceive a certain practice not only as a fact but as a (...)
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  40.  18
    Rights, Constitutions and the Perils of Panglossianism.Frederick Schauer - 2018 - Oxford Journal of Legal Studies 38 (4):635-652.
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  41.  51
    Rights as Rules.Frederick Schauer - 1987 - Law and Philosophy 6 (1):115 - 119.
  42.  19
    Book Review: When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality, by Corey BrettschneiderWhen the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality, by BrettschneiderCorey. Princeton: Princeton University Press, 2012. [REVIEW]Frederick Schauer - 2014 - Political Theory 42 (4):498-501.
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  43.  1
    Kelsen, Kletzer, and the Differentiation of Law.Frederick Schauer - 2022 - American Journal of Jurisprudence 66 (2):269-278.
    : 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 that law is unique in ordering the use of force is also a valuable contribution to the project of (...)
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  44.  6
    On the Alleged Problem of Legal Normativity.Frederick Schauer - 2019 - In Frederick Schauer, Christoph Bezemek & Nicoletta Bersier Ladavac (eds.), The Normative Force of the Factual: Legal Philosophy Between is and Ought. Springer Verlag. pp. 171-180.
    Many contemporary philosophers of law believe that one of the central problems of the field is that of explaining the normativity of law. But it is not clear that this is a problem at all, or at least that it is different from the problems that have been exhaustively addressed and analyzed for generations. Once we deconstruct the alleged problem of normativity into its component parts, we can appreciate that legal normativity is either conditional, or is instead but a small (...)
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  45.  24
    Norm and Nature: The Movements of Legal Thought.Frederick Schauer - 1994 - Canadian Journal of Philosophy 24 (3):495-509.
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  46.  11
    Response: A Continuing Conversation.Frederick Schauer - 2018 - Jurisprudence 9 (2):385-393.
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  47.  12
    Government and the Mind.Frederick Schauer - 1980 - Philosophical Books 21 (1):41-43.
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  48.  14
    Review: Acts, Omissions, and Constitutionalism. [REVIEW]Frederick Schauer - 1995 - Ethics 105 (4):916 - 926.
  49.  17
    Messages, Motives, and Hate Crimes.Frederick Schauer - 1992 - Criminal Justice Ethics 11 (2):52-54.
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  50.  17
    Review Essay / Decriminalization and the Constitution.Frederick Schauer - 1984 - Criminal Justice Ethics 3 (1):76-84.
    David A. J. Richards, Sex, Drugs, Death and the Law: An Essay on Human Rights and Overcriminalization Totowa, N.J.: Rowman and Littlefield, 1982, xii + 316 pp.
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