Jurisprudence & Legal Philosophy最新文献_第5页

Moral Evaluation and Conceptual Analysis in Jurisprudential Methodology 法理学方法论中的道德评价与概念分析

Jurisprudence & Legal Philosophy Pub Date : 2006-08-22 DOI: 10.1093/acprof:oso/9780199237159.003.0004

John Oberdiek, Dennis Patterson

{"title":"Moral Evaluation and Conceptual Analysis in Jurisprudential Methodology","authors":"John Oberdiek, Dennis Patterson","doi":"10.1093/acprof:oso/9780199237159.003.0004","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199237159.003.0004","url":null,"abstract":"In the last several years, analytic general jurisprudence has become increasingly attentive to its own methodology. No longer content with its traditional first-order questions revolving around the varieties, commitments, and defensibility of legal positivism, the discipline of jurisprudence has turned inward, asking the second-order question, How should one do jurisprudence? The methodology debate is not a mere proxy war between rival positivists and their mutual foes. In the first instance, second-order methodological positions on the role of moral evaluation in jurisprudence do not correspond directly to first-order positions regarding the relationship between legality and morality. Furthermore, the methodology debate focuses on one of the few planks in nearly all of the contenders' platforms, forcing legal philosophers to justify or jettison their shared commitment to conceptual analysis. In this article we introduce the methodology debate, draw attention to the merits and shortcomings of various positions already staked out, and contribute to the debate by, albeit briefly, defending the claims that moral evaluation has (at least) a modest role in analyzing the concept of law and that conceptual analysis, or rather, many of its incarnations, is defensible and indeed inescapable in jurisprudence.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"127 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131651224","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}

引用次数: 11

Drawing a Line between the Law and the Social Sciences: The Exercise of Sovereign Powers on an Uncertain Factual Base 划清法律与社会科学的界限:在不确定的事实基础上行使主权权力

Jurisprudence & Legal Philosophy Pub Date : 2006-05-01 DOI: 10.2139/ssrn.914486

C. Engel

{"title":"Drawing a Line between the Law and the Social Sciences: The Exercise of Sovereign Powers on an Uncertain Factual Base","authors":"C. Engel","doi":"10.2139/ssrn.914486","DOIUrl":"https://doi.org/10.2139/ssrn.914486","url":null,"abstract":"Eventually, all law is about sovereign intervention. But public law is distinct from private law in that intervention is not only subsidiary. And it is distinct from criminal law in that intervention is undertaken with the intention to govern. This explains that taming sovereign powers features prominently in public law theory. In the second half of the 19th century, the founding father of German administrative law, Otto Mayer, has developed the control of sovereignty to perfection. In his system, administrative law is all about form. Purpose is legally irrelevant. The dynastic sovereign of his days was free to choose whatever purposes he deemed fit, provided he strictly respected legal form, and provided he got parliamentary approval whenever he intruded into freedom or property. In the meantime, all the preconditions for this definition of the discipline have disappeared. In Germany, Parliament is no longer the natural opponent of government. The constitution has reacted by material provisions that bind the legislator. The key topic of administrative law is purpose, not form. Administrative reality largely escapes legal formality. The legislator strives for social betterment, very broadly speaking, not just for providing citizens with an institutional framework for their dealings. Against this backdrop, the distinction between form and substance may no longer serve as the borderline between (administrative) law and the social sciences. This article offers an alternative demarcation. As in Otto Mayer's days, all law still is about the exercise of sovereign powers. But it also is about good governance. Both elements must be combined. Due to the first element, administrative law treats the second element in a way that differs from the approach in the social sciences. Specifically, administrative law is unable to precisely define the situation before it starts arguing about social betterment. It must permanently remain open to the unlikely features of the individual case.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128456406","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}

引用次数: 0

Addiction and the Theory of Action 成瘾和行动理论

Jurisprudence & Legal Philosophy Pub Date : 2006-04-10 DOI: 10.2139/ssrn.896104

M. Corrado

引用次数: 5

Private Order and Public Justice: Kant and Rawls 私人秩序与公共正义:康德与罗尔斯

Jurisprudence & Legal Philosophy Pub Date : 2006-04-04 DOI: 10.4324/9781315252629-15

Arthur Ripstein

{"title":"Private Order and Public Justice: Kant and Rawls","authors":"Arthur Ripstein","doi":"10.4324/9781315252629-15","DOIUrl":"https://doi.org/10.4324/9781315252629-15","url":null,"abstract":"Private law has a peculiar status in recent political philosophy. It is often said that the law of property and contract establishes basic, pre-political rights that must constrain the activities of states. No less often, it is said that private law just is one of the activities of states, to be assessed in the same way as any other exercise of state power. This second approach has its roots in the utilitarian thought of Bentham and Mill, but in recent decades it has become home to the primary non-utilitarian account of private rights. Many of John Rawls' most ardent admirers in the academy have sought to put his social contract theory foreword as an alternative to utilitarianism, while accepting the basic utilitarian perspective on private law as public law in disguise. My aim in this paper is to provide an alternative to these two prominent views. The alternative I will develop draws on Kant and Rawls. I will articulate Kant's account of the nature and significance of private ordering in relation to freedom. The main part of my argument is concerned with the converse task of showing why private ordering requires public justice. I argue that the rule of law is a prerequisite to enforceable rights being consistent with individual freedom. Unless it issues from a public standpoint that all can share, the use of force subjects one person to the arbitrary choice of another. Turning once more to Rawls, I will argue that the best way of thinking about his emphasis on public provision of adequate rights and opportunities in parallel terms: they are the moral prerequisites for a shared public sphere, which is the precondition of legitimate enforcement of private rights.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116774706","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}

引用次数: 32

Why Libertarians Shouldn't Be (Too) Skeptical About Intellectual Property 为什么自由意志主义者不应该(过于)怀疑知识产权

Jurisprudence & Legal Philosophy Pub Date : 2006-02-13 DOI: 10.2139/SSRN.981779

R. Epstein

{"title":"Why Libertarians Shouldn't Be (Too) Skeptical About Intellectual Property","authors":"R. Epstein","doi":"10.2139/SSRN.981779","DOIUrl":"https://doi.org/10.2139/SSRN.981779","url":null,"abstract":"Libertarians are inclined to view property as best dealt with through contract. They are hostile to IP rights in general, and copyright and patent rights in particular, because these aren't viewed as natural rights over tangible things stemming from the actions of individuals. Still these rights are defensible because they help advance human happiness in a wide range of circumstances, so that their creation under a set of general prospective rules satisfies the most exacting of social criterion. They tend to leave no one worse off than in a state of nature, and indeed tend to spread their net benefits broadly over the entire population. Differences in how the law treats both tangible and intellectual property do not signal any disintegration in the overall conception of property rights. As in all cases we should be on the lookout for strong social improvements that cannot be achieved by voluntary means. In those cases, purposive innovation on property rights, by either courts or legislatures seems appropriate. The law of intellectual property should be subject to constant analysis and review, but not to any a priori attack on the supposed inferiority of intellectual property rights to those in tangible objects.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"18 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131623286","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}

引用次数: 3

A Life of H.L.A. Hart: The Nightmare and the Noble Dream H.L.A.哈特的一生:噩梦与高贵的梦想

Jurisprudence & Legal Philosophy Pub Date : 2006-01-01 DOI: 10.1111/j.1468-2230.2006.00579_1.x

S. Collini

引用次数: 2

Poisoning the Well: Law & Economics and Racial Inequality 毒害水井:法律、经济和种族不平等

Jurisprudence & Legal Philosophy Pub Date : 2005-12-01 DOI: 10.2139/ssrn.700686

Robert Suggs

{"title":"Poisoning the Well: Law & Economics and Racial Inequality","authors":"Robert Suggs","doi":"10.2139/ssrn.700686","DOIUrl":"https://doi.org/10.2139/ssrn.700686","url":null,"abstract":"The standard Law & Economics analysis of racial discrimination has stunted our thinking about race. Its early conclusion, that laws prohibiting racial discrimination were unnecessary and wasteful, discredited economic analysis of racial phenomena within the civil rights community. As a consequence we know little about the impact of racial discrimination on commercial transactions between business firms. Laws do not prohibit racial discrimination in transactions between business firms, and the disparity in business revenues between racial minorities and the white mainstream dwarf disparities in income by orders of magnitude. This disparity in business revenues is a major factor in the persistence of racial inequality. Since discrimination in business activity cannot be prohibited and equal protection doctrine severely limits race conscious programs, policies intended to erode racial barriers to business firms must satisfy the demands of the marketplace. And we currently lack the nuanced understanding needed to design relevant programs. Law & Economics built its flawed analysis of discrimination on the concept of psychic income. Critical to its conclusion about civil rights laws being unnecessary was the implicit assumption that only white workers, but not black workers, could experience psychic gains and losses from satisfying their preferences. Once flawed assumptions, such as this one, are replaced by more appropriate ones, economic analysis can increase our understanding of how race affects market activity and aid the creation of policies that increase minority business activity and reduce racial inequality.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130094207","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}

引用次数: 3

Schmitt's Critique of Kelsenian Normativism

Jurisprudence & Legal Philosophy Pub Date : 2005-03-01 DOI: 10.1111/J.1467-9337.2005.00284.X

S. Delacroix

引用次数: 12

Do Cases Make Bad Law? 判例会产生坏法律吗?

Jurisprudence & Legal Philosophy Pub Date : 2005-02-01 DOI: 10.2139/ssrn.779386

F. Schauer

{"title":"Do Cases Make Bad Law?","authors":"F. Schauer","doi":"10.2139/ssrn.779386","DOIUrl":"https://doi.org/10.2139/ssrn.779386","url":null,"abstract":"It is commonly argued that one virtue of common-law rule-making (or law-making) is that the common law judge is enriched in being able to make legal rules while simultaneously seeing one concrete application of such a rule. Under the traditional view, the live dispute before the law-making court gives that court an appreciation of the real people, real facts, and real controversies with which the rule must deal. But legal rules, unlike adjudications, are general, and thus encompass multiple individuals and multiple facts. The task of the common law rule-maker, is therefore to assess the larger field that the putative rule will cover, and the larger array of events that the rule will control. Doing this in the context of a concrete controversy, however, is likely to give the rule-maker a distorted rather than accurate picture of what the larger array looks like. The phenomena of availability, anchoring, and issue framing, each well-documented in modern behavioral economics, social psychology, and political science, will all serve to focus the court’s attention on the immediate case, and at the same time lead the court to believe that the immediate case and its salient features are more representative of the larger array than is in fact the case. The very availability of the concrete dispute, exacerbated by the obligation of having to decide it, may thus be far more distorting than illuminating to a law-making court, and may consequently call into question the traditional respect not only for the value of concrete disputes and concrete parties as providing the best platform for prospective law-making, but perhaps also for the common law method in general.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126077339","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}

引用次数: 58

Hart's and Kelsen's Concepts of Normativity Contrasted 哈特和凯尔森规范性概念的对比

Jurisprudence & Legal Philosophy Pub Date : 2004-12-01 DOI: 10.1111/J.1467-9337.2004.00280.X

S. Delacroix

引用次数: 10