Legal TheoryPub Date : 2020-06-01DOI: 10.1017/S1352325220000154
Hamish Stewart
{"title":"PROCEDURAL RIGHTS AND FACTUAL ACCURACY","authors":"Hamish Stewart","doi":"10.1017/S1352325220000154","DOIUrl":"https://doi.org/10.1017/S1352325220000154","url":null,"abstract":"ABSTRACT People have procedural rights because states are under a duty of political morality to provide them with fair procedures for settling disputes about the application of the laws. This obligation flows from the state's duty to treat each person as a free and equal member of the legal order. Yet adherence to procedural rights can impede accuracy in fact-finding, which in turn can result in poor protection for substantive rights. So the state also has a duty to provide a reasonable degree of accuracy in fact-finding. The legal order should therefore strive to improve the accuracy of fact-finding, within the constraints imposed by procedural rights people have. Nevertheless, the duty to provide reasonably accurate procedures is subordinate to the duty to provide procedural rights because the settlement of disputes among free persons must be conducted in a manner that respects their status as free persons.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"156 - 179"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000154","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46808381","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}
Legal TheoryPub Date : 2020-06-01DOI: 10.1017/S1352325220000178
G. Sinnott
{"title":"CONSTITUTIONAL LAW AND THE LIMITS OF RAWLSIAN LIBERTY","authors":"G. Sinnott","doi":"10.1017/S1352325220000178","DOIUrl":"https://doi.org/10.1017/S1352325220000178","url":null,"abstract":"ABSTRACT This paper examines the scope of John Rawls's theory of liberty. It first develops an account of how this theory, which Rawls presents in largely abstract terms, applies in specific cases. It then argues that this account reveals that the scope of Rawls's theory of liberty is surprisingly narrow and that it does not include such seemingly obvious liberal rights as the freedom to engage in the sexual behavior of one's choice or to have access to pornography.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"124 - 155"},"PeriodicalIF":0.6,"publicationDate":"2020-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000178","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41958226","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}
Legal TheoryPub Date : 2020-05-01DOI: 10.1017/S1352325220000087
Adam Perry
{"title":"LAW'S BOUNDARIES","authors":"Adam Perry","doi":"10.1017/S1352325220000087","DOIUrl":"https://doi.org/10.1017/S1352325220000087","url":null,"abstract":"Abstract The norms of a legal system are relevant in deciding on people's rights and duties within that system. Some norms that are not part of a legal system are also relevant within it: norms of foreign legal systems, games, clubs, contracts, grammar, and so on. What distinguishes the norms of a legal system from the norms merely relevant within it? Where, in other words, are law's boundaries? There are three existing answers in the literature, from Kramer, Shapiro, and Raz. None succeed. A better answer starts with a distinction between two types of legal relevance: direct and indirect. Norms of a legal system are directly relevant within it. Norms that are not part of a legal system are at most indirectly relevant within it. Thus, the two types of norms are distinguished by the directness of their relevance.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"103 - 123"},"PeriodicalIF":0.6,"publicationDate":"2020-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000087","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48514201","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}
Legal TheoryPub Date : 2020-03-01DOI: 10.1017/S1352325220000063
François Schroeter, Laura Schroeter, Kevin Toh
{"title":"A NEW INTERPRETIVIST METASEMANTICS FOR FUNDAMENTAL LEGAL DISAGREEMENTS","authors":"François Schroeter, Laura Schroeter, Kevin Toh","doi":"10.1017/S1352325220000063","DOIUrl":"https://doi.org/10.1017/S1352325220000063","url":null,"abstract":"ABSTRACT What does it take for lawyers and others to think or talk about the same legal topic—e.g., defamation, culpability? We argue that people are able to think or talk about the same topic not when they possess a matching substantive understanding of the topic, as traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines the content of thoughts and utterances is what would best serve the core purposes of the representational practice within which the thought or utterance is located. In thus favoring a “relational model” in metasemantics, we share Ronald Dworkin's goal of explaining fundamental legal disagreements, and also his reliance on constructive interpretation. But what we delineate is a far more general and explanatorily resourceful metasemantics than what Dworkin articulated, which also bypasses some controversial implications for the nature of law that Dworkin alleged.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"62 - 99"},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000063","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47718562","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}
Legal TheoryPub Date : 2020-03-01DOI: 10.1017/S1352325220000026
Mark McBride
{"title":"PRESERVING THE INTEREST THEORY OF RIGHTS","authors":"Mark McBride","doi":"10.1017/S1352325220000026","DOIUrl":"https://doi.org/10.1017/S1352325220000026","url":null,"abstract":"ABSTRACT According to interest theorists of rights, rights function to protect the right-holder's interests. True. But this leaves a lot unsaid. Most saliently here, it is certainly not the case that every agent who stands to benefit from performance of a duty gets to be a right-holder. For a theory to allow this to be the case—to allow for an explosion of right-holders—would be tantamount to a reductio thereof. So the challenge for interest theorists is to respect the core of the interest theory while delimiting the set of right-holders in a principled manner. The foremost explicit attempt to do this has invoked Bentham's test. Predictably, invocation of this test has come under attack, with the ultimate aim of challenging the interest theory itself. My purpose in this paper is to render Bentham's test as clearly and accurately as possible. Doing so will raise issues of modality—ultimately in rendering Bentham's test's logical form. Ultimately a core attack on Bentham's test falls away, and, to that extent, the interest theory remains standing as a promising theory of rights.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"3 - 39"},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000026","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42660148","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}
Legal TheoryPub Date : 2020-03-01DOI: 10.1017/S1352325220000166
R. Mullins
{"title":"PROTECTED REASONS AND PRECEDENTIAL CONSTRAINT—ERRATUM","authors":"R. Mullins","doi":"10.1017/S1352325220000166","DOIUrl":"https://doi.org/10.1017/S1352325220000166","url":null,"abstract":"• For any case c = 〈X, r, s〉, Factors(c) = X, Rule(c) = r and Outcome(c) = s. • In order to ensure coherence, we stipulate that for any case c = 〈X, r, s〉 belonging to a case base Γ, Premise(r) ⊆ X. • Suppose the court reasons against the background of a case base Γ1 that contains only one case, c1 = 〈X1, r1, π〉. • In a new fact scenario X, a decision in X based on the rule r and leading to outcome s will satisfy the protected reason model of precedential constraint just in case Γ∪ {〈X , r , s 〉} is exclusion consistent. • Adding the case c2 = 〈X2, r2, δ〉 to Γ1 would introduce inconsistency into the case base because we could then derive the priority relation {f p 1 , f p 2 , f p 3 } ,c2 {f d 1 }, which is inconsistent with the priority order ,c1 . • A case base Γ is exclusion consistent just in case there is no case c = 〈X, r, s〉 in Γ such that for another case c ′ = 〈X ′, r ′, s 〉 in Γ, X ′ oPremise(r) and Premise(r ′)∈ Excludedc. • Supposing that the decision for defendant in this case is represented by the case c5 = 〈X5, r4, δ〉, G1 < {c5} will not be exclusion inconsistent. • To illustrate the equivalence between the two approaches we can return to the same example of a case base Γ1 involving the previous decision c1 = 〈X2, r1, π〉, where the decision-maker is as before faced with the new fact scenario X2 = {f p 1 , f d 1 }.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"100 - 101"},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000166","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43917589","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}
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