Philosophy of Law eJournal最新文献

{"title":"Value of a Higher Education: 2021 Non-parametric Analysis of a Targeted LinkedIn Survey Instrument","authors":"Robb Elton","doi":"10.2139/ssrn.3922418","DOIUrl":"https://doi.org/10.2139/ssrn.3922418","url":null,"abstract":"The costs of a higher education are preclusive for many people, this is true despite the trend over the years for legal policy to encourage access for underrepresented demographics. This paper reports on the free-education trend through inquiry of a variety of professionals, students, and academics via LinkedIn (n=621). After conducting a series of Wilcoxon Signed-Rank tests, the results showed that higher education holds definite perceptual value, while also poses problems in terms of cost. The true cost of some higher education versus its practical, financial, future-value remains an issue to be balanced by society. This debate will also need to implicate access to education by poor and minority demographics. There is a definable need for further studies comparing policy options. Whether they are derived from social media or a conference room is less important than not having these discourses at all.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115359679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Subsidiarity in Private Law?","authors":"Mat Campbell","doi":"10.2139/ssrn.3655306","DOIUrl":"https://doi.org/10.2139/ssrn.3655306","url":null,"abstract":"This is the first English language paper seriously to examine the meaning of subsidiarity from the perspective of private law, in which it might be used to understand legal rules, or the interaction of different kinds of claim. Since there are so few relevant sources in English, this article casts a wide net for consensus. It offers six propositions about what it means to designate a rule or relationship (between legal regimes, say) as one of subsidiarity. These are formulated by reference, principally, to thinking about subsidiarity outwith private law; and, secondarily, to (i) miscellaneous literature about subsidiarity, (ii) the general French private law literature about subsidiarity, and (iii) what little can be gleaned from relevant unjust enrichment discourse in English. The state of play in that discourse is summarised, before the choice of Roman Catholic social teaching, European Union law, and European human rights law as settings to examine for their conceptions of subsidiarity is explained, and subsidiarity in each of these contexts is sketched out. Succeeding sections then outline each proposition, and clarify how it may be derived from the sources. The paper concludes by reflecting guardedly on the potential of subsidiarity in private law, as a way to model the interrelation of private law claims and doctrines.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116654603","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Dynamic Consistency Question Against Originalism","authors":"William Heartspring","doi":"10.2139/ssrn.3447333","DOIUrl":"https://doi.org/10.2139/ssrn.3447333","url":null,"abstract":"How laws should be understood depends partially on philosophy of language and moral philosophy. By arguing for original meaning interpretation of the Constitution, originalists implicitly pick particular visions of philosophy of langauge. In other visions, what \"original meaning\" even means cannot even be clearly defined. Having recognized this, one can still ask a question based on a particular vision of philosophy of language and moral philosophy. If people can be considered at least approximately optimizing some objective (or utility) function when interpreting written texts, there are chances that dynamic inconsistency, or sometimes called as time inconsistency, arises. That is, even if everything in life can deterministically be known, how I today intend my words to be used tomorrow may not be how I actually use my words tomorrow. In these circumstances, should we still stick to the original meaning interpretation of texts, given that change in meaning may be related to people making an improvement in utility?","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130383536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Limits of Legal Evolution: Knowledge and Normativity in Theories of Legal Change","authors":"Liam McHugh-Russell","doi":"10.2139/ssrn.3404815","DOIUrl":"https://doi.org/10.2139/ssrn.3404815","url":null,"abstract":"Over the last forty years, legal theory and policy advice have come to draw heavily from an ‘evolutionary’ jurisprudence that explains legal transformation by drawing inspiration from the theoretical successes of Darwinian natural selection. This project seeks to enrich and critique this tradition using an analytical perspective that emphasizes the material consequences of concepts and ideas. Existing theories of legal evolution depend on a positivist epistemology that strictly distinguishes the objects of social life — interests, institutions, systems — from knowledge about those objects. My dissertation explores how knowledge, and especially non-legal expertise, acts as an independent site and locus of transformation, mediating the interaction between law and social phenomena and acting as a catalyst of legal innovation. Prior work by Simon Deakin has integrated insights from systems theory to show how the interaction between law and economic institutions can only be properly understood by attending to the epistemic frame law uses to interpret economic practice. Using a case study on the impact of ‘law and finance’ literature on World Bank policy advice and, consequentially, on legal reforms adopted by many developing countries between 2000 and the present, I show that such attention to legal knowledge is inadequate. The case points, first, to the contingency of the intellectual tools used to understand legal institutions. Rather than deploying a determinate rationality, private and public actors address legal, economic, and ethical problems using a variety of paradigms: viewpoints are not determined by realities. More fundamentally, the cases suggest that successful paradigms, rather than economic or political realities alone, shape the dynamics of socio-legal change. My conclusions address some normative questions that arise when researchers in a social scientific mode are implicated in the processes they seek to document.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121247607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Significance of a Civil Wrong","authors":"Stephen Smith","doi":"10.1093/oso/9780190865269.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780190865269.003.0008","url":null,"abstract":"Imagine that I commit a civil wrong against you. For example, imagine that I trespass over your property or carelessly injure you. What is the legal effect of my wrong? In particular, how does the wrong change my legal position? More specifically yet, does the wrong give rise to new duties or liabilities on my part? In this essay, I argue that the commission of a civil wrong (or at least the tort and contract breaches that are my focus) has no effect on the wrongdoer’s substantive duties. Its legal significance for wrongdoers lies solely in respect of their liabilities to judicial remedies. But even here, wrongs have a limited effect. Although remedies are typically directed at defendants who have committed wrongs, in most cases, the wrong is not the operative reason for the remedy (though it may be a necessary condition). Most remedies are responses to either right-threats or injustices (each of which is distinct from wrongs). Only a subset of damages awards are responses to wrongs qua wrongs. The subset includes nominal damages, exemplary damages, damages for pain and suffering (mental distress), and a variety of damages awards that I describe compendiously as ‘vindicatory’. For wrongdoers, the sole legal effect of a wrong is that it gives rise, in certain cases, to a liability to these awards. Significantly, the subset of ‘wrong-based’ awards does not include damages for consequential pecuniary losses.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121427622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Precautionary Principle Through the Viewscreen of Cost-benefit Analysis","authors":"Artem Anyshchenko","doi":"10.2139/ssrn.3326413","DOIUrl":"https://doi.org/10.2139/ssrn.3326413","url":null,"abstract":"The literature on environmental law and policy tends to emphasise conceptual contradictions between the precautionary principle and cost-benefit analysis. This article argues that, though some theoretical inconsistencies have taken place, there is no significant contradictions between them. On the contrary, the precautionary principle and cost-benefit analysis are mutually dependent and closely connected with each other in many ways. While the two concepts might contrast due to differences in policy priorities, they tend to correlate on the level of environmental impact assessment. It seems that the relative value of the precautionary principle could be evaluated in the best possible way against cost-benefit analysis, and vice versa. Thus it is better to emphasise that the two concepts exist in a sort of symbiotic relationship that benefits them both.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128213515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Repugnancy in the Arab World","authors":"H. Hamoudi","doi":"10.31228/osf.io/rwp4m","DOIUrl":"https://doi.org/10.31228/osf.io/rwp4m","url":null,"abstract":"\"48 Willamette Law Review 427 (2012)“Repugnancy clauses†-- those constitutional provisions that, in language that varies from nation to nation, require legislation to conform to some core conception of Islam -- are all the rage these days. This clause, a relatively recent addition to many modern constitutions, has emerged as a central focus of academic writing on Muslim state constitutions generally, and on Arab constitutions in particular. Much of the attention it has received has been enlightening and erudite. Yet one aspect of the broader repugnancy discourse that deserves some attention is an important, often de facto, temporal limitation on the effect of the clause. There appears to be a rising sentiment that repugnancy in the Arab world should not apply to legislation enacted prior to the date that the repugnancy clause was inserted into the constitution. Irrespective of electoral results throughout the region heavily favoring parties that seek a more robust role for shari'a in public life, the trend seem to be growing deeper roots. This is particularly ironic because the non-retroactive canon is fundamentally incoherent, both from the perspective of constitutional structure as well as substantive policy. As to the former, surely a constitutional amendment of this sort must generally have retroactive effect. It would make little sense to amend a constitution to grant all citizens equal protection under the law and then for a court to suggest that existing slavery laws might be exempted because enacted before the amendment in question. Such a result would be one that courts would generally resist to the extent it was possible to do so, given how much violence is done to the amendment by the limitations. This would seem to be no less the case for a clause requiring legislative conformity with Islam. Moreover, as a matter of policy, if there exists in any state a broad view that law should conform to Islam (a commonly stated Islamist position), and if that view is widespread (a fair conclusion given recent electoral results), then surely the advocates of that view should be as willing to apply it to past legislation as to future. Either the Islamicity of legislation is a cornerstone of the Muslim state or it is not. If it is, then the date of the legislation vis-à -vis the date of the repugnancy amendment is surely beside the point for the advocates of shari'a conformity. Indeed, the fact of the incoherence may well explain the reluctance to discuss it often, particularly openly. Ironically, however, despite the incoherence, the limitations on repugnancy have spread. Given this, this Article addresses how and why these limitations grew so popular, and what it might portend for the future of Islamist parties in the Arab world.\"","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121090759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Restoring Trust in the Rule of Law","authors":"Ernst Hirsch Ballin","doi":"10.1007/978-94-6265-355-9_3","DOIUrl":"https://doi.org/10.1007/978-94-6265-355-9_3","url":null,"abstract":"","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125104370","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Existential Philosophy of Law","authors":"Valeriano Diviacchi","doi":"10.2139/ssrn.3008894","DOIUrl":"https://doi.org/10.2139/ssrn.3008894","url":null,"abstract":"This essay is a continuation of my closing thoughts in my paper \"Why Tolerate Law\". This is a contemplation of the meaning of the universal \"law\" in its modern sense of nonscientific law: in the universe of language discourse that results in decisions of legality and illegality. I will further contemplate whether this universal can be naturalized to scientific law and seek to determine whether such meaning and naturalization are or can be an existential philosophy of law. This contemplation will require contemplating the attributes of existentialism as they exist in plebeian lives that includes nihilism and not solely from the more popular academic patrician existentialism that excludes nihilism. Law and its decisions of legality and illegality existentially exist in the universe of normative language in the same way that mathematics and numbers exist in scientific language: decisions of legality and illegality as are numbers are as particular and as real as any bricks or stones thrown at us, yet law as is mathematics is an abstract universal. However, unlike mathematics using rationality to go from aesthetics to particular and empirical pragmatic truth, the aesthetics of the universal law becomes particular and empirical as a social construct by irrational decisions of legality and illegality with their rationality running backwards from their pragmatic truth to aesthetics. The only descriptive \"is\" in law consists of the pragmatic truth of the empirical execution upon law through decisions of legality and illegality. The universal law is used and is useful as a universal to describe a social construct that is an unopposed normative language with a monopoly on violence to enforce its normative statements. It is the final arbiter through violence of all morality and ethics within the social construct that created it; it is essentially an unopposed ethics with a monopoly on violence whose goal is the survival of the social construct that created it in its struggle with the universe to survive.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117037132","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Presidential Maladministration","authors":"J. Blackman","doi":"10.2139/ssrn.2888172","DOIUrl":"https://doi.org/10.2139/ssrn.2888172","url":null,"abstract":"In Presidential Administration, then-Professor Elena Kagan re-envisioned administrative law through the lens of the President’s personal influence on the regulatory state. Rather than grounding Chevron deference on an agency’s “special expertise and experience,” Kagan would “take unapologetic account of the extent of presidential involvement in administrative decisions in determining the level of deference to which they are entitled.” The stronger the President’s fingerprints on the executive action, a practice she praises as “presidential administration,” the more courts should defer. There is a flipside to Kagan’s theory: four species of high-level influence, which I describe as “presidential maladministration,” are increasingly problematic. First, where an incoming administration reverses a previous administration’s interpretation of statute, simply because a new sheriff is in town, courts should verify if the statute bears such a fluid construction. Second, where an administration discovers a heretofore unknown power in a statute that allows it to confer substantive rights, courts should raise a red flag, especially when the authority exercised was one Congress withheld. Third, where an administration declines to enforce a statute that Congress refuses to repeal, under the guise of prosecutorial discretion, courts should view the action with skepticism. Fourth, where evidence exists that the White House attempted to exert its influence, and intrude into the rulemaking process of independent agencies, courts should revisit the doctrine concerning altered regulatory positions. As the Federal Register turns the page from Obama to Trump, this article provides a timely analysis of how courts react to unpresidented approaches to maladministration.","PeriodicalId":129013,"journal":{"name":"Philosophy of Law eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121176422","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}