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Finding Leviathan in Hegel: The Private Rule of Law and its Limits 在黑格尔中寻找利维坦：私法规则及其限制
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2024-04-10 DOI: 10.1007/s10982-024-09497-1
Paul Gowder
{"title":"Finding Leviathan in Hegel: The Private Rule of Law and its Limits","authors":"Paul Gowder","doi":"10.1007/s10982-024-09497-1","DOIUrl":"https://doi.org/10.1007/s10982-024-09497-1","url":null,"abstract":"<p>This paper uses Gerald Postema’s <i>Law’s Rule</i> to take up one of the most controversial questions in rule of law scholarship: whether the ideal can provide the basis for criticizing the state alone, or private individuals and entities exercising power over others as well. An account of the characteristics of states in virtue of which the rule of law licenses control over their power is developed, followed by an examination of some cases in which non-state holders of power over others might take on some of those characteristics. Under such circumstances, there are rule of law reasons to demand state control of private power.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"46 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140589774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Why Metaphysics Matters: The Case of Property Law 形而上学为何重要？财产法案例
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2024-04-09 DOI: 10.1007/s10982-024-09495-3
Ben Ohavi
{"title":"Why Metaphysics Matters: The Case of Property Law","authors":"Ben Ohavi","doi":"10.1007/s10982-024-09495-3","DOIUrl":"https://doi.org/10.1007/s10982-024-09495-3","url":null,"abstract":"<p>Are property rights absolute? This paper attempts to reframe this question by drawing on insights from the field of social ontology. My main claim is that, even if we accept the most extreme view of the absoluteness of property rights, there are some non-normative conceptual limitations to these rights. The conceptual limitations are based on two claims about the nature of property rights and their subject matter, namely objects in the world: (1) property law regulates relations between persons through the use of objects, and not relations between persons and objects; (2) even when owned, objects retain some of their ‘independent’, unowned, existence. Taken together, these claims confine property law to the <i>institutional</i> meaning that is given to objects, which is distinct from their <i>social</i> and <i>natural</i> meanings. Since property law defines objects in a certain way, it makes space for other social considerations but without the need to qualify property rights.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"214 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140589884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Strong Political Liberalism 强烈的政治自由主义
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2024-02-22 DOI: 10.1007/s10982-023-09491-z
Henrik D. Kugelberg
{"title":"Strong Political Liberalism","authors":"Henrik D. Kugelberg","doi":"10.1007/s10982-023-09491-z","DOIUrl":"https://doi.org/10.1007/s10982-023-09491-z","url":null,"abstract":"<p>Public reason liberalism demands that political decisions be publicly justified to the citizens who are subjected to them. Much recent literature emphasises the differences between the two main interpretations of this requirement, justificatory and political liberalism. In this paper, I show that both views share structural democratic deficits. They fail to guarantee political autonomy, the expressive quality of law, and the justification to citizens, because they allow collective decisions made by incompletely theorised agreements. I argue that the result can only be avoided by changing public reason’s role in collective decision-making. Instead of incompletely theorised agreements, we should demand agreement both on the public reasons themselves and on the other premises that justify political decisions. In this way, it is always possible to point to a procedure-independent reason that justifies democratic decisions, and the reasoning of the state is public and contestable. Finally, I explain how this, in turn, implies that only political liberalism can be rescued—by accepting what I will call strong political liberalism. Modifying justificatory liberalism in the necessary way will inevitably open the door to an objectionable form of perfectionism.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"138 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139920117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Public Ownership 公共所有权
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2024-02-12 DOI: 10.1007/s10982-023-09488-8
Avihay Dorfman
{"title":"Public Ownership","authors":"Avihay Dorfman","doi":"10.1007/s10982-023-09488-8","DOIUrl":"https://doi.org/10.1007/s10982-023-09488-8","url":null,"abstract":"<p>The two questions I seek to address in these pages are what is public property and why does it matter. Public property, like property more generally, is a powerful legal arrangement of allocating control and use rights with respect to resources. Unlike private property, public property does not establish normative powers with which private individuals can shape their practical affairs in and around social spheres such as housing, work, commerce, and worship. Rather, its distinctive value lies in extending autonomous agency to the construction of public spaces and resources. Public property places individuals in a position of collective self-government, manifested in the following two particular ways: first, expressing the ideas and commitments that the political community as a whole affirms; and second, exerting control over the construction and direction of the resources that make up the environment they occupy.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"17 1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-02-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139769925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Paternalism at a Distance 远距离家长制
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2024-02-06 DOI: 10.1007/s10982-023-09487-9
Jonathan Turner
{"title":"Paternalism at a Distance","authors":"Jonathan Turner","doi":"10.1007/s10982-023-09487-9","DOIUrl":"https://doi.org/10.1007/s10982-023-09487-9","url":null,"abstract":"<p>I argue that the distance between state and citizen gives state paternalism a <i>pro tanto</i> advantage over paternalism between individuals. <i>Pace</i> Jonathan Quong, the state neither denies nor diminishes my moral status by acting on a justified negative judgment about my rational or volitional capacities. Nor does its failure to paternalize on the basis of detailed information about individuals constitute a source of disrespect. Rather, the <i>less</i> discriminating nature of general legislation both reduces the risk of social stigmatization and avoids a problematic dynamic with the paternalizee. But paternalistic policies may give us reason to be concerned about superiority or contempt in policy-makers towards the citizens at whom they are directed. Governments must remain ‘faceless’ enough for paternalism to operate at a distance, but they must reassure the governed that the judgment that they can do better for them does not conceal the attitude that they are better than them.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"22 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139769848","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Kotzen, Conditional Relevancy, and the Difficulties of Cross-Disciplinary Dialogue 科岑、有条件的相关性和跨学科对话的困难
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2024-01-27 DOI: 10.1007/s10982-023-09489-7
Ronald J. Allen
{"title":"Kotzen, Conditional Relevancy, and the Difficulties of Cross-Disciplinary Dialogue","authors":"Ronald J. Allen","doi":"10.1007/s10982-023-09489-7","DOIUrl":"https://doi.org/10.1007/s10982-023-09489-7","url":null,"abstract":"<p>Forty years ago, Vaughn Ball demonstrated that the then received notion of conditional relevance served no useful purpose, as it would only come into effect if the probability of an element were 0.0. But, if the probability of an element were 0.0, a directed verdict would be in order and so once again conditional relevancy was doing no work. I extended that analysis to include the relationship between proffers of evidence and facts of consequence to demonstrate that the work that conditional relevancy was supposedly doing was isomorphic to that done by relevancy in all significant ways, and yet the Federal Rules of Evidence provide different standards for the two situations to determine admissibility. I thus proposed an amendment to FRE 104(b) to provide for the same standard to be applied to ‘relevancy’ and ‘conditional relevancy’. In a recent article, Matthew Kotzen appears to subject this work to intense scrutiny and criticism, yet at the same time reaches, so far as I can tell, identical conclusions. This raises the question, which I examine, whether this is an example of cross-disciplinary difficulties in communication.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"56 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2024-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139584281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Exhortative Legal Influence 劝诫性法律影响
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2023-11-25 DOI: 10.1007/s10982-023-09482-0
Crescente Molina
{"title":"Exhortative Legal Influence","authors":"Crescente Molina","doi":"10.1007/s10982-023-09482-0","DOIUrl":"https://doi.org/10.1007/s10982-023-09482-0","url":null,"abstract":"<p>In this article, I offer a theoretical account of a central yet surprisingly overlooked form of legal influence or control, one that I refer to as the law’s ‘exhortative’ influence. The law exercises an ‘imperative’ influence when it purports to control agents’ behavior by imposing on them legal duties to act or refrain from acting in the legally desired or repelled way. By contrast, it exercises what I call an exhortative form of influence when it aims at impacting agents’ reasons for action whilst refraining from mandating or prohibiting the legally desired or repelled conduct. The law’s exhortative control or influence must be distinguished not only from its imperative influence, but also from what I call the law’s merely ‘instructive’ form of influence, such as the one provided by so-called power-conferring laws. Though I illustrate the functioning of this special form of legal control—the law’s exhortative influence—by using primarily the example of the law of contracts, the article offers novel insights about law in general as a mode of social ordering by developing a theory of the structure of ‘legal incentives’. Legal incentives, I contend, are the means through which the law exercises its exhortative influence. Clearly distinguishing different techniques of legal influence is not only of analytical interest, but should invite us to think of accounts of the justification of legal authority that consider the similarities but also the differences in the moral significance of these diverse techniques.</p>","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"108 ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138505801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Innate right, indeterminacy, and official discretion: A puzzle for Kantians 先天权利、不确定性和官方自由裁量权:康德主义者的困惑
2区 哲学
Law and Philosophy Pub Date : 2023-10-19 DOI: 10.1007/s10982-023-09483-z
Paul Garofalo
{"title":"Innate right, indeterminacy, and official discretion: A puzzle for Kantians","authors":"Paul Garofalo","doi":"10.1007/s10982-023-09483-z","DOIUrl":"https://doi.org/10.1007/s10982-023-09483-z","url":null,"abstract":"Abstract This paper poses a puzzle for contemporary Kantian political philosophy. Kantian political philosophers hold that the state’s purpose is to secure the conditions for people’s innate right to equal freedom, while at the same time claiming that innate right does not give a determinate set of conditions that the state is to bring about. Officials, then, have to make decisions in cases where the considerations of innate right provide no further guidance. I argue that, intuitively, in such cases there are (i) some further considerations that officials may appeal to and (ii) some further considerations that officials may not appeal to in order to decide among the options consistent with people’s innate right and then raise difficulties for the ability of current Kantian accounts to explain how they can accept both (i) and (ii). I conclude by suggesting one potential path forward for Kantians to address this puzzle.","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135667058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Unilateral Authority Theory of Punishment 惩罚的单方面权威理论
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2023-08-22 DOI: 10.1007/s10982-023-09484-y
Richard Child
{"title":"The Unilateral Authority Theory of Punishment","authors":"Richard Child","doi":"10.1007/s10982-023-09484-y","DOIUrl":"https://doi.org/10.1007/s10982-023-09484-y","url":null,"abstract":"","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42228104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
THE CONTOURS OF CORPORATE MORAL AGENCY 企业道德能动性的轮廓
IF 0.8 2区 哲学
Law and Philosophy Pub Date : 2023-07-08 DOI: 10.1007/s10982-023-09477-x
A. Strudler
{"title":"THE CONTOURS OF CORPORATE MORAL AGENCY","authors":"A. Strudler","doi":"10.1007/s10982-023-09477-x","DOIUrl":"https://doi.org/10.1007/s10982-023-09477-x","url":null,"abstract":"","PeriodicalId":51702,"journal":{"name":"Law and Philosophy","volume":"1 1","pages":""},"PeriodicalIF":0.8,"publicationDate":"2023-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41343741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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