Jurisprudence-An International Journal of Legal and Political Thought最新文献

{"title":"Unconscious negligence and responsibility <b>Agency, Negligence and Responsibility</b> , edited by Veronica Rodriguez-Blanco and George Pavlakos, Cambridge, Cambridge University Press, 2021, Online ISBN 9781108628228","authors":"Jeanne-Rose Arn","doi":"10.1080/20403313.2023.2260275","DOIUrl":"https://doi.org/10.1080/20403313.2023.2260275","url":null,"abstract":"","PeriodicalId":44113,"journal":{"name":"Jurisprudence-An International Journal of Legal and Political Thought","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135241429","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 imperfectionism","authors":"James Edwards","doi":"10.1080/20403313.2023.2259237","DOIUrl":"https://doi.org/10.1080/20403313.2023.2259237","url":null,"abstract":"ABSTRACTWhat role do moral norms play in the justification of legal norms? Here, I explore an answer that emphasises the moral significance of imperfection – of the fact that we are imperfect people, who live imperfect lives, and who have imperfect tools at our disposal for responding to our predicament. These imperfections, I argue, help make the case for (one version of) the harm principle. And they help make the case against the claim traditionally associated with legal moralism, namely that moral duties give law-makers reason to create legal duties with the same content. To accept all this is compatible with accepting – as I also claim here – that legal norms which help us better conform to moral norms are legal norms there is reason for law-makers to create. Those who accept this are nowadays dubbed perfectionists. Following John Gardner, I suggest that they are better thought of as legal imperfectionists.KEYWORDS: Harm principle; legal moralismperfectionismliberalismcriminal law Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 References to legal moralism in what follows are references to the traditional view. I discuss variations on that view, and defend a rival characterisation, in J Edwards, ‘An Instrumental Legal Moralism’ in L Green, B Leiter and J Gardner (eds), Oxford Studies in Philosophy of Law: Volume 3 (OUP 2018).2 This formulation may bring to mind Joseph Raz’s normal justification thesis. My claim in the text, however, is not a claim about what justifies the authority of legal norms. It is a claim about what justifies the creation and retention of such norms. (It is compatible, indeed, with the claim that legal norms are never legitimately authoritative). For Raz’s thesis, see J Raz, The Morality of Freedom (OUP 1986) 53ff.3 More, that is, than (those which) occurred prior to creation of the legal norm, and/or than (those which) would have continued to occur in its absence.4 It is a norm that, in John Gardner’s words, ‘retards rather than advances the cause of conformity with the very moral norms’ that justify its existence. See J Gardner, ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ (2011) Law and Philosophy 1, 21.5 Those who believe in a general moral obligation to obey the law will of course disagree. I add myself here to the list of those who doubt that any such obligation exists.6 Say, because the exception would be erroneously taken to apply in a range of cases in which not stopping is dangerous.7 M Moore, Placing Blame (OUP 1997) ch 16.8 The suggestion is Malcolm Thorburn’s: see M Thorburn, ‘Criminal Law as Public Law’ in RA Duff and SP Green (eds) Philosophical Foundations of Criminal Law (OUP 2011) 23.9 See J Gardner, ‘Justification under Authority’ (2010) Canadian Journal of Law and Jurisprudence 71, 73; J Gardner, ‘Dagan and Dorfman on the Value of Private Law’ (2017) Columbia Law Journal 179, 195–96. Gardner attributes the suggestion to Michael Walzer.10 P","PeriodicalId":44113,"journal":{"name":"Jurisprudence-An International Journal of Legal and Political Thought","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136115586","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}