Philosophy Of Law

Progress or Regress: Kant and the right to (r)evolution

by Marko Konjovic

Published in Sintezis Journal, Belgrade

In this paper, the author examines Kant’s refl ections on the nature of revolution, as well as with the justifi cation... more In this paper, the author examines Kant’s refl ections on the nature of revolution, as well as with the justifi cation of revolutionary action. Based on Kant’s narrative on the history of human civilization, as well as on Kant’s writings on philosophy of law and political philosophy, the author analyzes Kant’s arguments about the absolute prohibition of revolution, dividing them into legal and moral arguments. The author, furthermore, explains how Kant envisions resistance to an unjust authority, and in accordance with this, analyzes the concept of reform in Kant’s legal and political philosophy. The aim of this paper, however, is to reconcile Kant’s prohibition of revolution with the wholehearted enthusiasm that Kant expresses towards the French bourgeois revolution. For this purpose, the author shows that revolution, according to Kant, is implicitly justifi ed if it leads from state of nature to the state of civil society. The author believes that pre-revolutionary France can be seen as a state of nature, which would consequently bring into conformity Kant’s prohibition of revolution with his support for the revolutionary tendencies of eighteenth century France.

Moral Paternalism

by gerald dworkin

Pregnancy as Harm

by Rory Kraft

Michigan's Appellate Court ruled in 2004 that a pregnancy that resulted from a rape should be considered a bodily... more Michigan's Appellate Court ruled in 2004 that a pregnancy that resulted from a rape should be considered a bodily injury for sentencing purposes. Interestingly, all three possible outcomes of a pregnancy—abortion, miscarriage, or childbirth—are considered to bring with them significant and substantial physical, psychological, and emotional changes. While the immediate impact of the ruling in People v. Cathey affected only the guilty individual, there are larger implications for this ruling beyond just sentencing guidelines. The ruling can be considered a step forward in prosecuting rapists, but possibly at the expense of reimagining the female body. This article considers the Cathey ruling itself, the potential benefits and consequences of this understanding on feminist discourse, and, crucially, the impact of this decision on abortion discussions. The central question that emerges is, can we both consider pregnancy a harm and believe that this harm is not always wrong-making?

Retroactive Justice: Trials for Human Rights Violations under a Prior Regime

by Makoto Usami

published in Burton M. Leiser and Tom D. Campbell (eds.), Human Rights in Philosophy and Practice (Aldershot, England: Ashgate, 2001), pp. 423–442.

Law as Public Policy: Combining Justice with Interest

by Makoto Usami

published in Tadeusz Biernat and Marek Zirk-Sadowski (eds.), Politics of Law and Legal Policy: Between Modern and Post-Modern Jurisprudence (Warsaw: Wolters Kluwer Polska, 2008), pp. 292–315.

C. MacKinnon's "Women’s lives – Men’s laws"

by Dolores Morondo Taramundi

Published in Diritto e Questioni Pubbliche - rivista online 7, 2007

http://www.dirittoequestionipubbliche.org/page/2007_n7/2007-DQ_c-rece-03_D_Morondo_x_MacKinnon.pdf

Diritti e giustizia sociale nella giurisprudenza europea 2010

by Dolores Morondo Taramundi

Published in A. Cantaro (a cura di) Giustizia e diritto nella scienza giuridica contemporanea, Giappicchelli, Torino 2011, pp. 236-47.

Sull'indeterminatezza del concetto di dignità nella Carta di Nizza 2006

by Dolores Morondo Taramundi

Dworkin and Phenomenology of the 'Pre-Legal'?

by Dean Goorden

published in 'Ratio Juris' 25:3, September 2012.

Building Legality: Between Truthmaking and Constitution

by triantafyllos gkouvas

Presented at the 2012 McMaster Graduate Conference for Legal Theory
This is still a draft under development. Please do not cite without permission.

Building relations like making a proposition true or constituting a statue are shortcuts for an impressively nuanced... more Building relations like making a proposition true or constituting a statue are shortcuts for an impressively nuanced class of relations pertaining to the creation of less fundamental entities by more fundamental ones. Building relations are not metaphysical bedrock like universals, states of affairs or tropes but they do perform a salvaging task at least for those philosophers who are less willing to resort too quickly to reductive explanations of less fundamental phenomena. As I aspire to demonstrate building metaphors are no less frequent in debates about the nature of law and that’s not a matter of making one’s philosophical prose more illustrative. The argument I aim to bring forward is that no concerted effort has been made so far to explore the nature of the building relation that generates legal content. My target relation will be that of truth-making whose application to the grounds of legal propositions I will try to illuminate. My final argument will be that it is not just the case that there are legal propositions awaiting to be made true but propositions sortally identified as structural parts of the law of a legal system and it is qua structural parts that they are constituted (rather than simply made true) by what content the law practices of that system actually contribute.

Feindstrafrecht als regulative Idee

by Stefan Schick

Judicial Preference

by Eric Miller

Houston Law Review, Vol. 44, 2008

In this paper I claim that, where the judge possesses strong discretion, she has both a legal power and the legal... more In this paper I claim that, where the judge possesses strong discretion, she has both a legal power and the legal right to decide whichever way she wishes. Neither law nor morality provides a decisive ground for decision and all that is left is her taste or inclination.

Perhaps because it looks like a naked exercise of power, the judge's predilections are not a terribly popular basis for judicial decision. Preference is often characterized as non-rational: as having no basis in reason because not based upon some unique reason requiring a particular decision. Reason-based decision, by contrast, is represented as demonstrating that some decisive reason overrides competing ones to settle the outcome of a legal dispute, independent of the judge's will. Absent such a reason, judicial decision consists an arbitrary exercise of the power authoritatively to resolve cases.

I claim that the judge's personal preference or predilection operates as a legitimate basis for judicial decision in cases presenting strong discretion. Strong discretion exists wherever legal rules conflict, and there is no decisive reason determining the outcome. In such circumstances, each of the conflicting rules is undefeated and there is no incorrect thing to do. The judge has both a legal power and a legal right to decide whichever way she wishes.

I contrast my strong discretion thesis with the claim that the judge has only "weak" discretion to resolve the case because extra-legal reasons bind the judge. In particular, I demonstrate that Ronald Dworkin and Joseph Raz, who are often thought to entertain diametrically opposed theories of law, both endorse weak discretion in adjudication and do so for similar, though mistaken, reasons.

Whatever the merits of the weak discretion thesis generally, I argue that strong discretion and preference-based decision is an inevitable and useful feature of complex legal systems. It encourages judges to experiment with different outcomes in circumstances in which they have only a limited ability to foresee the consequences, and no way to determine which among the possible consequences is best.

A Storied Shooting: Liberty Valance and the Paradox of Sovereignty

by Joshua Dienstag

"Derecho natural y Derechos humanos. Síntesis práctica y complementariedad teórica"

by Ana Marta González

Tópicos, nº. 15, pp. 73-98, 1998. ISSN 0188-6649

"Dos visiones del derecho. La epiqueya en Aristóteles y Kant

by Ana Marta González

Persona y Derecho: Revista de fundamentación de las Instituciones Jurídicas y de Derechos Humanos, vol. 46, pp. 235-264, 2002. ISSN 0211-4526

"Derecho natural y Derechos humanos. Síntesis práctica y complementariedad teórica"

by Ana Marta González

Tópicos, nº. 15, pp. 73-98, 1998. ISSN 0188-6649

"Dos visiones del derecho. La epiqueya en Aristóteles y Kant

by Ana Marta González

Persona y Derecho: Revista de fundamentación de las Instituciones Jurídicas y de Derechos Humanos, vol. 46, pp. 235-264, 2002. ISSN 0211-4526

Kant and a culture of freedom

by Ana Marta González

Archiv fur rechts-und sozialphilosophie, ARSP, vol. 96, nº. 3, pp. 291-308, 2010, ISSN 0001-2343

A Critique of Darwall's Accountability Defense of Civil Recourse Theory

by Alex Sarch

(Draft)

Stephen Darwall and Jason Solomon have suggested that the best way to provide a normative defense of civil recourse... more Stephen Darwall and Jason Solomon have suggested that the best way to provide a normative defense of civil recourse theory’s conception of tort law is to argue that tort law embodies our moral accountability to one another. In this paper, I offer three reasons to think that Darwall and Solomon are wrong: first, the appeal to accountability calls into question the descriptive adequacy of civil recourse theory; second, it faces internal normative problems; and third, the accountability defense relies on controversial moral claims. As a result, I suggest that Darwall's views on moral accountability do not provide the sort of normative justification of civil recourse style tort law that proponents of the view have been seeking.

Jurisprudence for Foxes

by Leslie Green

forthcoming in the International Journal of Constitutional Law

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog', that is,... more This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog', that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.