Jurisprudence & Legal Philosophy最新文献

{"title":"From Knight to Habermas: Discursive Ethics and Political Economy","authors":"Dalibor Rohac","doi":"10.2139/ssrn.1116964","DOIUrl":"https://doi.org/10.2139/ssrn.1116964","url":null,"abstract":"This paper discusses the role of Jurgen Habermas' theory of discursive ethics in the history of normative political economy. Given his background, Habermas himself is seldom perceived as a figure relevant for the evolution of political economy. The purpose of our paper is to show that his work represents an articulate extension of Frank Knight's call for a liberal order which would not be purely instrumental to maximisation of some aggregate measure of welfare but which would take into account individuals as moral persons. We proceed by finding parallels between Habermasian discursive ethics and Rawlsian contractarianism. We compare them at three different margins, which would have been relevant for Frank Knight. First, we are interested in how they fare in terms of respect of personhood. Second, we investigate the character of the agreement - if any - between the individuals who are to be guided by these ethical systems. Finally, we attempt to identify the origin of normative statements in each of these theories. In the light of these considerations, Habermas' approach appears to be close to Knight's ideals. Knightian political economy and discursive ethics lead to unconditional respect of personhood, they invoke consensus over values and it have their origin in the language-based constraints.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128296283","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 Rule of Reason in European Citizenship","authors":"Yuri Borgmann-Prebil","doi":"10.1111/j.1468-0386.2008.00416.x","DOIUrl":"https://doi.org/10.1111/j.1468-0386.2008.00416.x","url":null,"abstract":"This article reviews the European Court of Justice's case-law on European citizenship in the light of aspects of the rights theories of Ronald Dworkin and Robert Alexy. More specifically, the free movement right in Article 18(1) EC is conceptualised as a Dworkinian principle and as a prima-facie right or 'optimisation precept' in Alexy's sense. Against this backdrop the article argues that Article 18(1) can best be interpreted by drawing an analogy with the economic free movement provisions. The central argument is that the rule of reason also applies to European citizenship, or that there is a rule of reason in European citizenship. The analogy encompasses both the definition of the scope of Article 18(1) and its limitations. With regard to the latter, it is contended that there is no conceptual distinction between the 'limitations' and 'conditions' referred to in that provision. Particular emphasis is placed on the recent case-law concerning the question of access to welfare benefits. In this regard it is suggested that the notion of a 'structural link' constitutes both a threshold criterion to trigger the prima-facie right in Article 18(1) as well as a benchmark for assessing the degree of solidarity owed to the migrant citizen. The rule of reason approach leads to the stipulation of a thin, juridical conception of European citizenship that does not rely in any way on thick, essentialist properties.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"119273227","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 Regular Practice of Morality in Law","authors":"Michael Giudice","doi":"10.1111/j.1467-9337.2007.00381.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2007.00381.x","url":null,"abstract":"This article examines the possibility of moral considerations and arguments serving as validity conditions of law in legal positivist theory. I argue that, despite recent attempts, this possibility has yet to be established. My argument turns on a defense of Joseph Raz's Sources Thesis, yet I do not adopt his famous argument from authority. Rather, I offer a renewed defense of the distinction between creation and application of law and argue that moral considerations and arguments, whether recognized in law or not, remain arguments about the modification of law.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"314 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114959741","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":"What Can One Expect from Logic in the Law?(Not Everything, But More than Something: A Reply to Susan Haack)","authors":"E. Bulygin","doi":"10.1111/j.1467-9337.2007.00383.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2007.00383.x","url":null,"abstract":"After examining Holmes’ criticisms of Langdell’s conception of legal science as being constructed only by means of axioms and their corollaries, not unlike what one finds in a book of mathematics, and taking into account that both Langdell and Holmes had a rather rudimentary idea of logic, Susan Haack, an outstanding logician, poses a question about the perspectives of applying to the law the far more powerful techniques of modern logic. Her answer to this question strikes one as rather pessimistic: she believes that a Langdellian program, updated by means of different logical techniques, can only provide a modest contribution to legal science: something but not everything. One of the targets of her criticism is Normative Systems by Carlos Alchourrón and Eugenio Bulygin (1971), an approach that she takes to be a typical case of the new logical theology. If by “logical theology” she understands the axiomatization of a legal system, deriving answers to specific legal questions from a priori logical considerations, and choosing best interpretations of legal texts on logical ground alone, then her criticism is misdirected. Normative Systems has nothing to do with such logical","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121805190","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":"Taking Rights Less Seriously: A Structural Analysis of Judicial Discretion","authors":"Matthias Klatt","doi":"10.1111/j.1467-9337.2007.00373.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2007.00373.x","url":null,"abstract":"This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128602428","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":"Socio-Economics - An Overview","authors":"R. Ashford","doi":"10.2139/ssrn.882751","DOIUrl":"https://doi.org/10.2139/ssrn.882751","url":null,"abstract":"Socio-Economics is a multi-disciplinary, holistic approach to economics that has gained growing acceptance in legal education and that is helpful in advocating economics justice. Socio-economics approaches economic understanding much as Adam Smith did (before there were separate disciplines) with a foundation based on natural and moral philosophy. Nevertheless, it explicitly acknowledges the powerful and pervasive influence of the neoclassical paradigm on contemporary thought. Recognizing that people first adopt paradigms of thought and then perform their inductive, deductive, and empirical analyses, socio-economists seek to examine the assumptions of the neoclassical paradigm, develop a rigorous understanding of its limitations, improve upon its application, and develop alternative, perhaps complementary, approaches that are predictive, exemplary, and morally sound. Grounded in the scientific method, socio-economics draws upon all relevant schools of thought and disciplines that shed light on economic phenomena and policy. It is a helpful foundation for exploring economic issues based on university-wide interdisciplinary collaboration in the public interest.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124388153","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":"Statutory Interpretation in the EU: The Augustinian Approach","authors":"L. Solan","doi":"10.2139/ssrn.998167","DOIUrl":"https://doi.org/10.2139/ssrn.998167","url":null,"abstract":"EU legislation is written in all of the EU’s official languages. Each version is authoritative, and no version is privileged as ‘the original’, at least not as an official matter. The practice derives from the very first Regulation of the Council of the European Economic Community in 1958, which declared Dutch, French, German and Italian as the official languages.1 As countries enter the EU, the Regulation has been amended many times to expand the number of official languages to match the official languages of the member states. Moreover, as accession treaties are signed, the treaties themselves contain provisions that show respect for the linguistic diversity of the EU. For example, the 1997 Treaty of Amsterdam says: \u0000This Treaty, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126442358","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":"Personal Inviolability and 'Private Law'","authors":"Gregory C. Keating","doi":"10.2139/ssrn.1081378","DOIUrl":"https://doi.org/10.2139/ssrn.1081378","url":null,"abstract":"The \"idea of private law\" has occupied a prominent place in tort theorizing over the past twenty years. To American ears, the idea has a libertarian ring, implying a realm of private freedom beyond the reach of public power. But the idea of \"private law\" pursued in recent tort theory is different. This strand of tort theory takes an essentially formal view of \"private law\" as a type of adjudication through which one member of civil society invokes the public power of the state to call another member of civil society to account for breach of an obligation, owed by the latter to the former. In a number of recent, elegant essays, Arthur Ripstein has advanced a particular version of this view, a version distinguished in important part by its enlistment of the political philosophy of John Rawls in support of this project. Ripstein's recent Tort Law in a Liberal State is a further contribution to this project, summarizing Professor Ripstein's view and arguing for both the interpretive and the philosophical plausibility of his project.Personal Inviolability and Private Law, JOURNAL OF TORT LAW: Vol. 1: Iss. 2, Article 4 (2006) raises objections to both aspects of Ripstein's project, and briefly explains why \"public law\" conceptions of tort are at least as plausible as \"private law\" ones, both philosophically and interpretively. Interpretively, Professor Ripstein's conception is open to three serious objections. First, by placing the calling of one member of civil society to account by another at the center of their view, \"private law\" theorists threaten to place the remedial cart before the substantive horse. Prior to the late nineteenth century, tort law had an intensely remedial cast and was not unified around general principles of liability. Our modern law of torts comes into existence with (and by the recognition of) tort as a freestanding law of primary obligation. By placing such great weight both on Kant's property-centered account of private law and on \"private law\" theory's heavily remedial conception of tort, Professor Ripstein's conception cuts against the fundamental thrust of modern tort law. That thrust is to make obligation central and to treat right and remedy as separable. Ripstein, by contrast, places enormous weight on remedy and takes right and remedy to be indivisible.Second, Tort Law in a Liberal State is, in important part, a brief for the fault principle. Professor Ripstein is right to distinguish between \"harm-based\" torts such as liability for accidental injury, negligently inflicted and \"right-based\" torts such as trespass, but wrong to claim that \"harm-based\" liability in tort is always fault-based. This claim leads Professor Ripstein both to a distorted account of tort law's various strict liabilities and to a fundamental mischaracterization of much of the conduct subject to liability in tort. Professor Ripstein's recasting of strict liabilities as fault ones commits him to the unfortunate idea that there is something intrin","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127583165","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":"Is You Is or Is You Ain't Hart's Baby? Epstein's Minimum Content of Natural Law","authors":"James Allan","doi":"10.1111/j.1467-9337.2007.00356.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2007.00356.x","url":null,"abstract":"In this paper the author re-examines Hart's famous description of The Minimum Content of Natural Law and defends its extremely limited ambit against the attempted inflation of Richard Epstein.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129926240","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":"Does the Unconstrained Legal Actor Exist?","authors":"Michael Robertson","doi":"10.1111/j.1467-9337.2007.00358.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2007.00358.x","url":null,"abstract":"The unconstrained legal actor, typically a judge, is a central character in modern jurisprudence. He is feared by legal formalists, legal positivists, and Ronald Dworkin alike. He is lauded by some legal realist and critical legal studies theorists. Stanley Fish says that all of this theorising is pointless because the unconstrained legal actor cannot exist. My paper evaluates Fish's arguments for this surprising position.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121911293","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}