Jurisprudence & Legal Philosophy最新文献

{"title":"Autonomy and the Rule of Law","authors":"R. Manrique","doi":"10.1111/j.1467-9337.2007.00359.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2007.00359.x","url":null,"abstract":"In this paper I am concerned with the belief that the moral value of the rule of law is based upon some kind of connection between the rule of law and the respect and promotion of personal autonomy. I identify and analyse two possible connections: the rule of law as a sufficient condition for the respect and promotion of personal autonomy, and the rule of law as a necessary condition for personal autonomy. My conclusion is that neither of these two connections grants the moral value of the rule of law.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"32 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":"134333041","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 is International Human Rights Law? Three Applications of a Distributive Account","authors":"Patrick Macklem","doi":"10.2139/SSRN.986713","DOIUrl":"https://doi.org/10.2139/SSRN.986713","url":null,"abstract":"The standard normative account of international human rights law is that its overarching mission is to protect universal features of what it means to be a human being from the exercise of sovereign power. This article offers an alternative account of the field, one that locates its normative dimensions in its capacity to speak to distributive injustices produced by how international law brings legal order to international political reality. On this account, human rights possess international legal significance not because they correspond to abstract conceptions of what it means to be human but because they monitor the distributive justice of the structure and operation of the international legal order itself. This account both draws on and departs from cosmopolitan conceptions of distributive justice in contemporary international political theory. It sheds normative light on why some human rights merit international legal protection despite the fact that they might lack some of the properties required by a universal account of the field. It illustrates these claims by describing how indigenous rights, minority rights, and rights to international cooperation and assistance mitigate some of the adverse consequences of how international law distributes sovereign power among a variety of legal actors it recognizes as states.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126770854","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":"Coolies, James Yen, and Rebellious Advocacy","authors":"B. Hing","doi":"10.15779/Z38TC6Z","DOIUrl":"https://doi.org/10.15779/Z38TC6Z","url":null,"abstract":"Those of us who engage in progressive legal work need to be constantly reminded that we do not know everything - that we are not knights in shining armor swooping in to save subordinated communities. We should be collaborating: working with rather than simply on behalf of clients and allies from whom we have much to learn. Though lawyering for social change is arduous work, there is much to gain in these battles against subordination, not simply from the potential outcome but from the collaborative process itself: as our clients gain strength and confidence, we too are renewed. Thus invigorated by the talent, spirit, and innovation that our clients and allies bring to the table, we aspire to bring that same sense of renewal to those with whom we work. As a legal services attorney, a law school clinical instructor, and a volunteer with the Immigrant Legal Resource Center (ILRC), I am constantly amazed by the talented clients and non-lawyer allies I have encountered. From my contact with such allies I have drawn the invaluable lesson that the fight against discrimination - in essence, the fight against subordination - is one that community lawyers wage most effectively with allies and clients. In their work, these allies demonstrate that the struggle requires skills, techniques, and approaches that, unfortunately, conventional law school classrooms neglect. If we seek to become more effective collaborative lawyers, then we should keep our eyes open for individuals from whom we can learn. Long before I became a lawyer, I met such a person named Y.C. James Yen. Though perhaps little-known among contemporary community lawyers, Yen's work has merited accolades all over the world, as well as broadened and enriched my own perspective of progressive lawyering. Indeed, Yen's approach fits well within the theoretical lawyering framework advanced by Jerry Lopez, Lucie White, and Ascanio Pomelli. These scholars, who are grounded in ongoing community work, have challenged us to re-imagine our roles as community lawyers. They advocate a collaborative approach that respects clients' decision-making capacities, seeks allies in the pursuit of social justice, and is open to learning from clients and community partners. In this article, I first provide some background on Yen and describe his incredible work in Europe, China, and the Philippines. I then revisit the scholarship of Lopez, White, and Piomelli as their theories and experiences pertain to community lawyering in the rebellious or collaborative style, and I relate Yen's historic work to the philosophy and concepts they advance. My hope is thus to remind contemporary rebellious advocates of collaborative possibilities.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114339463","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 Public Reason Counterproductive?","authors":"E. Peñalver","doi":"10.2139/ssrn.981010","DOIUrl":"https://doi.org/10.2139/ssrn.981010","url":null,"abstract":"The debate over the proper role of religion in public life has raged on for decades and shows little signs of slowing down. Proponents of restrictive accounts of public reason have proceeded under the assumption that religious and deep moral disagreement constitutes a threat to social stability that must be tamed. In contrast to this \"scary story\" linking pluralism with the threat of instability, there exists within political theory a competing, \"happy story\" according to which pluralism affirmatively contributes to stability by creating incentives for groups to moderate their demands. Whether the scary story or happy story is a more accurate reflection of our reality is a difficult empirical question, but one that ought to matter a great deal to discussions of public reason. Acting as if the scary story were true when the happy story is in fact operating will lead proponents of public reason to stifle the healthful effects of robust pluralism, degrading the quality of public deliberation and ultimately undermining stability. In other words, if the happy story turns out to be the right one, restrictive accounts of public reason may turn out to be counterproductive, hastening the very deliberative and social harms they aim to forestall.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"30 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123583661","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":"Epinomia: Plato and the First Legal Theory","authors":"Eric Heinze","doi":"10.1111/j.1467-9337.2007.00350.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2007.00350.x","url":null,"abstract":"In comparison to Aristotle, Plato's general understanding of law receives little attention in legal theory, due in part to ongoing perceptions of him as a mystic or a totalitarian. However, some of the critical or communitarian themes that have guided theorists since Aristotle find strong expression in Plato's work. More than any thinker until the nineteenth and twentieth centuries, Plato rejects the rank individualism and self-interest which, in his view, emerge from democratic legal culture. He rejects schisms between legal norms and community values, institutional separation of law from morals, intricate regimes of legislation and adjudication, and a culture of rampant litigation. He rejects the alienation of individuals, from each other and from their communities, that is so easily bred within highly complex political and legal systems. An understanding of his approach to some of the classic questions of legal theory provides insight not only into some central ideas of his own thought, but also into the roots of critical and communitarian critiques of law.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127828704","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":"State Sovereignty, Popular Sovereignty and Individual Sovereignty: From Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law?","authors":"E. Petersmann","doi":"10.2139/SSRN.964147","DOIUrl":"https://doi.org/10.2139/SSRN.964147","url":null,"abstract":"This paper discusses the basic constitutional problem of modern international law since the UN Charter: How can the power-oriented international legal system based on sovereign equality of states be reconciled with the universal recognition of inalienable human rights deriving from respect for human dignity and popular sovereignty? State representatives, intergovernmental organizations, international judges and non-governmental organizations often express different views on how far the universal recognition of human rights has changed the subjects, structures, general principles, interpretative methods and object and purpose of international law (e.g. by the emergence of erga omnes obligations and jus cogens limiting state sovereignty to renounce human rights treaties, to refuse diplomatic protection of individuals abroad, or domestic implementation of international obligations for the benefit of domestic citizens). The paper explains why effective protection of human rights at home and abroad requires multilevel constitutional protection of individual rights as well as multilevel constitutional restraints of national, regional and worldwide governance powers and procedures. While all European states have accepted that the European Convention on Human Rights and EC law have evolved into international constitutional law, the prevailing paradigm for most states outside Europe remains constitutional nationalism rather than multilevel constitutional pluralism. Consequently, European proposals for reforms of international economic law often aim at constitutional reforms (e.g. of worldwide governance institutions) rather than only administrative reforms, as they are frequently favoured by non-European governments defending state sovereignty and popular sovereignty within a more power-oriented international law among states.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115206310","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":"Rights and Commerce","authors":"W. Stephen Westermann","doi":"10.2139/SSRN.949911","DOIUrl":"https://doi.org/10.2139/SSRN.949911","url":null,"abstract":"The goal of this article is to identify and fill an important gap in the theory of entitlements. A property rule with respect to a particular entitlement in a contemplated multi-entitlement transaction can mean one of two things: 1. The holder looks to net value received - a kind of collective property rule where consumer surplus with respect to some components of the transaction can subsidize undercompensation with respect to the particular entitlement - i.e., where the market price for the particular entitlement is less than the holder's subjective value (in such case the holder possesses a market holdout right and the entitlement is regulated by a market property rule); or 2. the holder has an absolute right to retain the entitlement while entering into the transaction and thus can compare the value offered specifically for the entitlement (in a competitive market, its market price) with the holder's subjective value in deciding whether to part with it (in such case the holder possesses an absolute holdout right and the entitlement is regulated by an absolute property rule and an anti-bundling inalienability rule). These two different holdout rights distinguish legal standard entitlements — such as most property interests as well as gap-filler default entitlements - from legal autonomy rights - those rights conceived by lawmakers and society as being so fundamental or personal to the individual that, if they can be permitted to be ceded at all, can only be ceded with the autonomous consent of the holder. An autonomy right endows its holder with an absolute holdout right to ensure the holder's ability to retain the right within the right's scope and complete autonomy with respect to any decision to cede the right but precludes potentially efficient bundling of non-negotiable waiver or transfer of the right as part of standardized multi-entitlement transactions. On the other hand, the market holdout right conferred on holders by a standard entitlement provides the holdout right sufficient to elicit useful market prices and permits efficient standardization but compromises autonomy with respect to the individual entitlements that are subject to multi-entitlement transactions. Some legal entitlements, such as the common law right to civil jury trial preserved in the Seventh Amendment, when formed were protected by structural (rather than express legal) absolute holdout rights that have since been eroded by practices (such as standardized consumer commerce contracts) motivated and enabled by technological advances. This creates a choice between articulating a legal absolute holdout right with respect to the entitlement or permitting the content of the legal entitlement to be fundamentally altered.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126863206","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":"Moral Realism and Kantian Constructivism","authors":"James A. Stieb","doi":"10.1111/j.1467-9337.2006.00335.x","DOIUrl":"https://doi.org/10.1111/j.1467-9337.2006.00335.x","url":null,"abstract":"This paper questions nearly every major point Christina Lafont (2004) makes about the validity of social norms and their relation to moral realism and Kantian constructivism. I distinguish realisms from theories of objective or subjective knowledge, then from cognitivism. Next, I distinguish Kant and constructivism from Rawls' political constructivism. Finally, I propose clues for an alternative theory of moral constructivism.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133936859","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":"Preserving Public Confidence in the Courts in an Age of Individual Rights and Public Skepticism","authors":"C. Geyh","doi":"10.1515/9780804768382-003","DOIUrl":"https://doi.org/10.1515/9780804768382-003","url":null,"abstract":"Public confidence in the courts is a matter of perception or appearance that may be present or absent irrespective of whether public confidence is warranted in fact. Court defenders, who are convinced that judges (on the whole) have acted properly and deserve the public's trust, have thus devoted themselves to ensuring that judges appear to act properly too. This chapter explores the century-long campaign to regulate appearances of judicial impropriety and the consequences of that campaign - intended and not - for an impartial judiciary and public confidence in the courts. The author chronicles the emergence and eventual entrenchment of rules regulating the appearance of judicial impropriety. As regulators came to take appearances ever more seriously, they promulgated enforceable rules that prohibited judges from saying things or associating with others in ways that could create appearance problems. Paradoxically, this effort to strengthen rules regulating appearances by making them more enforceable may (to an as yet uncertain extent) have had the opposite effect, rendering them vulnerable to constitutional challenge on first amendment grounds. The net effect has been a detectable shift away from rules prohibiting speech or association that creates appearance problems, toward rules that implicitly authorize the underlying speech or association but require judges who thereby create appearance problems to disqualify themselves from cases in which such problems would call their impartiality into question. This development has potentially profound implications and suggests the possibility of a new paradigm in which judges are welcomed into the marketplace of ideas and encouraged, not just permitted, to say what is on their minds (on the theory that more speech is always better than less), so that litigants can better inform themselves of judicial biases that may warrant disqualification. There are two possible consequences: One is that judges will start to recuse themselves en masse from cases raising issues upon which they have taken public positions. Second, and more likely, judges will reinterpret the disqualification rules to allow judges to hear cases despite appearance problems created by their speech and association, so as to ensure an adequate judicial workforce. In that event, what was once a system of regulation designed to minimize appearance problems will have gradually given way to a system of partial impartiality that cultivates them.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115136968","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":"Jewish Perspectives on the Ethics of Tax Evasion","authors":"Robert W. McGee, G. Cohn","doi":"10.2139/SSRN.929027","DOIUrl":"https://doi.org/10.2139/SSRN.929027","url":null,"abstract":"ABSTRACT The ethics of tax evasion has been discussed sporadically in the theological and philosophical literature for at least 500 years. Martin Crowe wrote a doctoral thesis that reviewed much of that literature in 1944. The debate revolved around about 15 issues. Over the centuries, three main views evolved on the topic. This paper begins with a review of the literature and identifies the main issues and summarizes the three main viewpoints that have emerged over the centuries. It then reports on the results of two surveys of members of the Jewish faith who were asked their opinions on the ethics of tax evasion. The results of the two surveys were then compared. Male scores were also compared to female scores to determine if the responses differed by gender. INTRODUCTION The vast majority of articles that have been written about tax evasion have been written from the perspective of public finance. They discuss technical aspects of tax evasion and the primary and secondary effects that tax evasion has on an economy. In many cases there is also a discussion about how to prevent or minimize tax evasion. Very few articles discuss ethical aspects of tax evasion. Thus, there is a need for further research, which the present study is intended to partially address. As part of this study a survey instrument was developed based on the issues that have been discussed and the arguments that have been made in the tax evasion ethics literature over the last 500 years. Similar survey instruments were used to test sample populations in Romania, Guatemala and a few other countries that will be mentioned later in this paper. The present study reports on the findings of a survey that was distributed to undergraduate Orthodox Jewish students at a branch of Touro College in New York. The results of the present study are also compared to the findings of a human values study that touched on the ethics of tax evasion (Inglehart et al, 2004). REVIEW OF THE LITERATURE Although many studies have been done on tax compliance, very few have examined compliance, or rather noncompliance, primarily from the perspective of ethics. Most studies on tax evasion look at the issue from a public finance or economics perspective, although ethical issues may be mentioned briefly, in passing. The most comprehensive twentieth century work on the ethics of tax evasion was a doctoral thesis written by Martin Crowe (1944), titled The Moral Obligation of Paying Just Taxes. This thesis reviewed the theological and philosophical debate that had been going on, mostly within the Catholic Church, over the previous 500 years. Some of the debate took place in the Latin language. Crowe introduced this debate to an English language readership. A more recent doctoral dissertation on the topic was written by Torgler (2003), who discussed tax evasion from the perspective of public finance but also touched on some psychological and philosophical aspects of the issue. Walter Block (1989; 1993) sought in ","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133787605","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}