Jurisprudence & Legal Philosophy最新文献

{"title":"Human Dignity and Judicial Interpretation of Human Rights: A Reply","authors":"Paolo G. Carozza","doi":"10.1093/EJIL/CHN059","DOIUrl":"https://doi.org/10.1093/EJIL/CHN059","url":null,"abstract":"This essay is a reply to Christopher McCrudden's \"Human Dignity and Judicial Interpretation of Human Rights,\" 19 EJIL 655 (2008). It argues that McCrudden's study of the uses of the idea of human dignity in constitutional human rights adjudication confirms the thesis that there is at present an emerging global ius commune of human rights. Although McCrudden understates the existence and value of transnational agreement about human dignity and instead emphasizes divergences in the judicial uses of human dignity, in fact there is good reason to regard the core recognition of the status and principle of human dignity as more robust and useful and the disagreements as comparatively marginal and unimportant. Nevertheless, this article concludes, a substantive cross-cultural dialogue about the meaning and implications of human dignity for law is vital to the future of the human rights project; merely regarding the use of human dignity in functionalist terms as an empty placeholder for judicial discretion is inadequate.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126326229","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 Bizarre World of Historical Theories of Justice: Revisiting Nozick's Argument","authors":"Ezequiel Spector, M. Hevia","doi":"10.5840/SOCTHEORPRACT200834429","DOIUrl":"https://doi.org/10.5840/SOCTHEORPRACT200834429","url":null,"abstract":"In Anarchy, State, and Utopia, Robert Nozick defends his entitlement theory against patterned and end-state theories of justice. He claims that, unlike patterned and end-state theories of justice, the entitlement theory is consistent with people's liberty. In other words, he argues that the entitlement theory is consistent with people's liberty because it is a historical unpatterned theory of justice. This argument has been attacked on many different grounds. For instance, it has been argued that some patterned and end-state theories of justice are not inconsistent with people's liberty. Others have claimed that the entitlement theory itself is a patterned or end-state theory of justice and that, therefore, it has the defect that Nozick attributes to all patterned and end-state theories of justice. The aim of this paper is to cast doubt on Nozick's argument on a different basis. Let us assume that these objections against Nozick fail, that is, that all patterned and end-state theories of justice are contrary to liberty, and that the entitlement theory is a historical unpatterned theory of justice. On this assumption, we discuss Nozick's argument that the entitlement theory is consistent with liberty because the entitlement theory is a historical unpatterned theory of justice. We hold that this argument could be understood in two different ways. First, it could mean that the fact that a theory is historical unpatterned is a necessary and sufficient condition for that theory to be consistent with liberty. Second, it could mean that the fact that a theory is historical unpatterned is only a necessary condition for that theory to be consistent with liberty. We conclude two things. First, if the right way to interpret Nozick's argument is the first one, then there is something wrong with this argument: although it is true that being historical unpatterned is a necessary condition for a theory to be consistent with liberty, it is false that all historical unpatterned theories are consistent with liberty. In order to show that it is false, we propose a historical unpatterned theory of justice that is inconsistent with liberty: the \"bizarre\" theory of justice. In turn, the second interpretation of Nozick's argument is based on a more charitable reading of his text that would make him right. However, if we interpret Nozick's argument in this way, then his distinction between historical unpatterned and patterned (or end-state) theories is irrelevant: the relevant distinction is that between theories that are consistent with Nozick's conception of liberty and theories which are not. We will proceed in the following sequence. In section II, we present Nozick's argument for the entitlement theory and against patterned and end-state theories of justice. In section III, we deal with the first interpretation of Nozick's argument, which we call the \"sufficiency-necessity claim.\" Section IV discusses the second interpretation of Nozick's argument, which we call th","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127341492","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":"Social Law and Economics and the Quest for Dignity and Rights","authors":"M. White","doi":"10.4337/9781848442771.00048","DOIUrl":"https://doi.org/10.4337/9781848442771.00048","url":null,"abstract":"The economic approach to law, otherwise known as \"law and economics,\" is by many measures the most successful instance of economic imperialism, the application of economic principles to an \"outside\" field. However, law and economics is very closely tied to traditional, neoclassical economics, both in terms of its consequentialist standard of efficiency, embodied (variously) in Pareto optimality and Kaldor-Hicks efficiency, and its utility-maximizing economic agent, his choices completely determined by his preferences and constraints. But most social economists take issue with these foundational concepts, both of which reflect a basic ignorance of, or negligence to consider, the humanity and dignity of the persons economists purport to be modeling. This leads neoclassical economists to consider well-being to be just the sum of utilities, with no regard for how those utilities were obtained or their distribution, and to treat the individual as just a cog in the legal machine to be manipulated by policy as a means to furthering the end of efficiency. In the first section of this chapter, I introduce the brief social economics literature discussing law and economics. In the second section, I outline several key issues of interest to social economists regarding law and economics, focusing on the consequentialist foundations of the field and the resulting ignorance of fundamental human rights and dignity therein. Finally, I suggest several future areas of research in a social economics of crime, such as including rights and dignity into the evaluative toolbox of law and economics, and incorporating moral motivation and true agency into the models of individual decision-making used in law and economics.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114928985","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":"Human Rights According to Marxism","authors":"Eric Engle","doi":"10.2139/SSRN.1268556","DOIUrl":"https://doi.org/10.2139/SSRN.1268556","url":null,"abstract":"Marxism sees liberal individualist freedoms as a step up from feudalism but not as the end of historical development. Marxism defends not just negative \"freedoms from\" (procedural justice) but also affirmative \"rights to\" (claims). However, rights are contextualized in Marxism by the logic of socialist development rather than capitalism. Thus, rights are collective, social, relative and substantive rather than individual, absolute and procedural. The Marxist critique of fundamental rights and freedoms is a dialectic between first and second generation rights. This article presents a detailed explanation of the Marxist conception of human rights and critique of capitalist individual freedoms. Rights and freedoms are best seen not as conflicting but as complementing each other. Human Rights According to Marxism 1A. The Marxist Critique of Human Rights 3B. The Marxist Concept of Human Rights in Theory 7C. The Marxist Concept of Human Rights in practice 8D. Conclusion: The Liberal Critique of Marxist regimes 9","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133246146","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":"Reflective Intensions: Two Foundational Decision-Points in Mathematics, Law, and Economics","authors":"R. Hockett","doi":"10.2139/SSRN.1266282","DOIUrl":"https://doi.org/10.2139/SSRN.1266282","url":null,"abstract":"This Article, transcribed from a symposium talk given by the author, examines two critical junctures at which foundational decisions must be made in three areas of theoretical inquiry - mathematics, law, and economics. The first such juncture is that which the Article labels the \"arbitrary versus criterial choice\" juncture. This is the decision point at which one must select between what is typically called an \"algorithmic,\" \"principled,\" \"law-like,\" or \"intensionalist\" understanding of those concepts which figure foundationally in the discipline in question on the one hand, and a \"randomized,\" \"combinatorial,\" or \"extensionalist\" such understanding on the other hand. The second decision point concerns how to respond to certain paradoxes and/or indeterminacies that typically attend recursive, reflexive, or self-referential capacities in the discipline in question. Many practitioners attempt to circumvent or head-off such difficulties merely by fiat: They impose, in the form of axioms, ad hoc restrictions that simply rule out self-reference itself. Other practitioners, by contrast, face the difficulties occasioned by self-reference head-on. They then endeavor to ascertain what these tell us about the underlying structures of the subjects treated of in the disciplines in question. The Article argues that the most important lesson that has emerged in foundational mathematics since the time of Cantor is that neither a fully intensionalist nor a fully extensionalist understanding of the foundational concepts upon which the discipline is built - whether these be categories, classes, or sets - is sustainable. What the author calls a \"thin\" form of intensionalism has proved to be the most graceful and intuitively plausible means of accommodating the puzzles raised at the full intensionalist and extensionalist extremes. These means have been discovered, moreover, precisely by reflecting with care upon what the puzzles occasioned by self-reference reveal about cognition as engaged in by self-conscious, freely creative yet norm-observant creatures such as ourselves. The Article shows that we find the \"thin intensionalist\" accommodation that it advocates at work in both of the best known nonclassical logics upon which workable, non-paradox-ducking foundational mathematics programs have come to be based: Those are so-called \"epistemic,\" or \"intuitionist,\" logics in the one case, and one or another of the best known \"paraconsistent\" logics in the other. In effect, the Article shows, these logics compensate for the fully extensional treatments of classes or cognate foundational objects necessary to found Peano arithmetic, by reintensionalizing certain erstwhile extensional, truth-functional logical operators. The latter include negation in the intuitionist case, and either or both of negation and the material conditional in the most attractive paraconsistent cases. It is no accident, the Article argues, that its thin intensionalist accommodation, within foundat","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115603722","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":"Access to Information as a Human Right","authors":"K. Mathiesen","doi":"10.2139/SSRN.1264666","DOIUrl":"https://doi.org/10.2139/SSRN.1264666","url":null,"abstract":"Information rights include rights to create and communicate information (e.g., freedom of expression, freedom of association), to control others' access to information (e.g., privacy and intellectual property), and rights to access information (e.g., freedom of thought, the right to read). This paper focuses on those rights related to free access to information and argues that access to information is indeed a fundamental human right. It is further argued that the right to access is not merely a liberty right, but also a welfare right. That is, individuals' information rights place duties on governments to provide access to information.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122360400","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 Province of Jurisprudence (Really) Redetermined","authors":"A. Hutchinson","doi":"10.2139/ssrn.1167742","DOIUrl":"https://doi.org/10.2139/ssrn.1167742","url":null,"abstract":"When Julius Stone published his famous essay, The Province of Jurisprudence Redetermined, in 1944, he had reasonable cause for genuine optimism. English jurisprudence had been in the doldrums since the initial flurry of activity and excitement following Austin's launch of the modern project of analytical jurisprudence in 1832 with his The Province of Jurisprudence Determined. Most of the subsequent scholarship had simply refined and riffed unimaginatively on the basic Austinian themes. Yet, as the Second World War came to a close, there were signs that the time was ripe for a different and more vibrant approach to jurisprudential study. Julius Stone was at the forefront of such a spirited revival. Unfortunately, history has not been kind to Stone's optimistic obituary for analytical jurisprudence. Within a decade of his famous essay's publication, Hart's revival of legal positivism had restored the flagging fortunes of analytical jurisprudence. More sociologically-based efforts to expand the province of jurisprudence continued to be treated as marginal and secondary. This is an unfortunate state of affairs. Accordingly, in this essay, I want to do three things - to chronicle the hold that analytical jurisprudence still exerts as the 'default theory' of much legal thought and practice; to explore how Stone may have unintentionally contributed to that state of affairs; and to suggest how that continuing influence can be arrested and perhaps reversed. I intend to push through on an unconditional critique of analytical jurisprudence and to recommend an alternative approach that derives its rationale and motivation from a robust commitment to what I will term 'strong democracy'.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129682911","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":"Posterity and Embodiment","authors":"W. Edmundson","doi":"10.2139/ssrn.1144116","DOIUrl":"https://doi.org/10.2139/ssrn.1144116","url":null,"abstract":"Our concern for the future and our conception of human nature have both a philosophical dimension and a public policy dimension. Which would be the better way to spend our next dollar: on life-extension or on artificial intelligence? Manned space-exploration or robotic space-exploration? Answering such public-policy questions involves confronting some deep philosophical mysteries. If you were only concerned for your own survival, would you prefer to have your brain transplanted into another body, or have your brain scanned and its information realized in the hardware of a durable, Turing-testable robot? Would it be better to live one long life without offspring, or a short life leaving generations of descendants? If personal superlongevity and normal fertility would lead to overcrowding, which should we choose? Does considering \"existential threats\" change how we should answer? This article explores the conceptual and empirical interdependencies of these seemingly disjoint questions.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133292527","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":"Legal Validity: An Inferential Analysis","authors":"G. Sartor","doi":"10.1111/j.1467-9337.2008.00388.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2008.00388.x","url":null,"abstract":"I will argue that the concept of (valid) law is a normative notion, irreducible to any factual description. Its conceptual function is that of relating certain (alternative sets of) properties a norm may possess to the conclusion that the norm is legally binding, namely, that it deserves to be endorsed and applied in legal reasoning. Legal validity has to be distinguished from other, more demanding, normative ideas, such as moral bindingness or legal optimality.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123966835","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":"Hans Kelsen's Normativist Reductionism","authors":"E. Pattaro","doi":"10.1111/j.1467-9337.2008.00390.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2008.00390.x","url":null,"abstract":"This paper discusses Kelsen's attempt at reducing the concept of subjektives Recht (what is subjectively right) to that of objektives Recht (what is objectively right). This attempt fails, it is argued, because in Kelsen's theory the concept of subjektives Recht survives concealed within the concept of individual norm (individuelle Norm), a norm that, pace Kelsen, is not a case of what is objectively right (objektives Recht) but is precisely what is subjectively right (subjektives Recht): We could call it what is individually right.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117055742","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}