In The Nature of Legislative Intent, Richard Ekins explores the nature of legislative intent and, in doing so, the nature of the legislature. More precisely, Ekins aims ‘to perceive and explain the shape of the well-formed legislature’; and seeks to identify the central case of the legislature – that is to say, ‘the form that the legislature has, if any, when it is chosen and maintained by practically reasonable persons’. To approach the nature of the legislature, Ekins employs the central case method. Although there are good reasons to employ this method (which I endorse), the book does not include a full explanation of the methodology that underpins its approach.
{"title":"The Central Case Method in The Nature of Legislative Intent","authors":"A. Dolcetti","doi":"10.1093/AJJ/AUZ008","DOIUrl":"https://doi.org/10.1093/AJJ/AUZ008","url":null,"abstract":"In The Nature of Legislative Intent, Richard Ekins explores the nature of legislative intent and, in doing so, the nature of the legislature. More precisely, Ekins aims ‘to perceive and explain the shape of the well-formed legislature’; and seeks to identify the central case of the legislature – that is to say, ‘the form that the legislature has, if any, when it is chosen and maintained by practically reasonable persons’. To approach the nature of the legislature, Ekins employs the central case method. Although there are good reasons to employ this method (which I endorse), the book does not include a full explanation of the methodology that underpins its approach.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUZ008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44728983","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":"More Votes, More Irrationality","authors":"Giovanni Tuzet","doi":"10.1093/AJJ/AUZ005","DOIUrl":"https://doi.org/10.1093/AJJ/AUZ005","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUZ005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48330075","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}
This article is about Wesley Newcomb Hohfeld's famous analysis of one of the most basic concepts used in law and in ethics: the concept of a right. Hohfeld urged that usages of the term "right" are ambiguous between two senses of the word: persons have rights to do things and rights to have things done for them. Although Hohfeld died 100 years ago, he remains today one of the world’s most influential legal theorists, and his systematic analysis of the two concepts of a right remains importantly relevant today. This article seeks both to celebrate Hohfeld's achievement exactly a century after his death in October of 1918, and to inspire a new generation’s interest in his work and in the issues that his work timelessly informs. The article thus: (1) systematically explicates the Hohfeldian analysis of rights, explicating both logical extensions of what Hohfeld himself wrote, as well as relations of the Hohfeldian system to the modern deontic logic not available to Hohfeld during his day; (2) defends the Hohfeldian analysis from two forms of criticism popular in the rights literature that have developed over the past century; and (3) critiques the Hohfeldian analysis by rejecting one of its most central tenets and replacing it with an alternative logic of rights that is not vulnerable to this critique. These three tasks correspond to the three major subdivisions of the article. The article concludes with a split verdict on Hohfeld: an acceptance of the Hohfeldian analysis of the rights we have to others doing things for us, and a partial rejection and replacement of the Hohfeldian analysis of the rights we have to do things.
{"title":"The Hohfeldian Analysis of Rights*","authors":"Heidi M. Hurd, M. Moore","doi":"10.1093/AJJ/AUY015","DOIUrl":"https://doi.org/10.1093/AJJ/AUY015","url":null,"abstract":"This article is about Wesley Newcomb Hohfeld's famous analysis of one of the most basic concepts used in law and in ethics: the concept of a right. Hohfeld urged that usages of the term \"right\" are ambiguous between two senses of the word: persons have rights to do things and rights to have things done for them. Although Hohfeld died 100 years ago, he remains today one of the world’s most influential legal theorists, and his systematic analysis of the two concepts of a right remains importantly relevant today. This article seeks both to celebrate Hohfeld's achievement exactly a century after his death in October of 1918, and to inspire a new generation’s interest in his work and in the issues that his work timelessly informs. The article thus: (1) systematically explicates the Hohfeldian analysis of rights, explicating both logical extensions of what Hohfeld himself wrote, as well as relations of the Hohfeldian system to the modern deontic logic not available to Hohfeld during his day; (2) defends the Hohfeldian analysis from two forms of criticism popular in the rights literature that have developed over the past century; and (3) critiques the Hohfeldian analysis by rejecting one of its most central tenets and replacing it with an alternative logic of rights that is not vulnerable to this critique. These three tasks correspond to the three major subdivisions of the article. The article concludes with a split verdict on Hohfeld: an acceptance of the Hohfeldian analysis of the rights we have to others doing things for us, and a partial rejection and replacement of the Hohfeldian analysis of the rights we have to do things.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUY015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46491151","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":"Kant’s Concept of Law","authors":"Patrick Capps, J. Rivers","doi":"10.1093/AJJ/AUY014","DOIUrl":"https://doi.org/10.1093/AJJ/AUY014","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUY014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46652661","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":"The Road Not Taken: On MacIntyre’s Human Rights Skepticism","authors":"Mark D. Retter","doi":"10.1093/AJJ/AUY012","DOIUrl":"https://doi.org/10.1093/AJJ/AUY012","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUY012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48648382","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":"Lon L. Fuller on Political Obligation","authors":"Kevin Walton","doi":"10.1093/AJJ/AUY011","DOIUrl":"https://doi.org/10.1093/AJJ/AUY011","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUY011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43323272","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}
Many scholars assume that property concepts contribute very little to the way in which people think about rights in resources. Yet these assumed views do not accord with what we know about clocks, keys, fiat currency, and other artifacts. Artifacts are intention-dependent objects. The distinct ways in which different artifacts satisfy those intentions—their artifact functions—give artifacts more structure and coherence than is commonly believed. Those lessons come from scholarship on the philosophy of artifacts, and this Article uses them to study property concepts. This Article studies three concepts of property prominent in Anglo-American property law. All three concepts perform a common artifact function, facilitating the beneficial use of ownable resources. In the concepts and this function, “use” refers to an interest people have in deploying resources for rational well-being and consistent with others’ correlative use-interests. This Article supplies accounts of the intensions for the three concepts introduced. The Article also shows that these concepts extend coherently to property doctrines that are believed to confound encompassing concepts of property—easements, licenses, covenants running with the land, and the interests that beneficiaries hold in wealth-management trusts fall within the extensions for the appropriate concepts.
{"title":"Use and the Function of Property","authors":"Eric R. Claeys","doi":"10.2139/SSRN.2406052","DOIUrl":"https://doi.org/10.2139/SSRN.2406052","url":null,"abstract":"Many scholars assume that property concepts contribute very little to the way in which people think about rights in resources. Yet these assumed views do not accord with what we know about clocks, keys, fiat currency, and other artifacts. Artifacts are intention-dependent objects. The distinct ways in which different artifacts satisfy those intentions—their artifact functions—give artifacts more structure and coherence than is commonly believed. \u0000Those lessons come from scholarship on the philosophy of artifacts, and this Article uses them to study property concepts. This Article studies three concepts of property prominent in Anglo-American property law. All three concepts perform a common artifact function, facilitating the beneficial use of ownable resources. In the concepts and this function, “use” refers to an interest people have in deploying resources for rational well-being and consistent with others’ correlative use-interests. This Article supplies accounts of the intensions for the three concepts introduced. The Article also shows that these concepts extend coherently to property doctrines that are believed to confound encompassing concepts of property—easements, licenses, covenants running with the land, and the interests that beneficiaries hold in wealth-management trusts fall within the extensions for the appropriate concepts.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47145483","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":"Confessions of a Quidnunc","authors":"G. Sher","doi":"10.1093/AJJ/AUY005","DOIUrl":"https://doi.org/10.1093/AJJ/AUY005","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"63 1","pages":"49-61"},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUY005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48959348","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}
In Liberalism with Excellence Kramer offers an account of liberalism that gets at something liberal philosophy often overlooks: the crucial importance for individuals of the success of their groups. 2 He argues that the idea can be made coherent with two positions that have been developed in opposition to one another. The first position is that of Rawlsian liberalism. According to this view, where constitutional essentials are concerned, the state’s action cannot be justified with reference to the fact that it may promote values, projects, activities or modes of living aimed at the pursuit and achievement of the good life. In other words, justifications for state activity that concerns constitutional essentials should be confined to the advancement and honouring of justice. According to perfectionism, by contrast, the state can deliberately promote values, projects, activities and modes of living aimed at the good life; it can promote conceptions of the good. Kramer is a perfectionist. He argues that the state should invest in the success of the groups to which its citizens belong and that it can do so by promoting excellence in human achievements. This bolsters a variety of conceptions of the good, including those that value specific forms of such excellence. But Kramer argues that this is compatible with the Rawlsian liberal project. How? Because the excellence of one’s society or the achievements of outstanding individuals in one’s society bolsters the warranted self-respect of those who belong to the society. And, as Rawls sets it out, justice requires that individuals have a warranted sense of self-respect.
{"title":"Should I Be Proud of Liberalism with Excellence? On the Collective Grounds of Self-Respect","authors":"Zofia Stemplowska","doi":"10.1093/AJJ/AUY001","DOIUrl":"https://doi.org/10.1093/AJJ/AUY001","url":null,"abstract":"In Liberalism with Excellence Kramer offers an account of liberalism that gets at something liberal philosophy often overlooks: the crucial importance for individuals of the success of their groups. 2 He argues that the idea can be made coherent with two positions that have been developed in opposition to one another. The first position is that of Rawlsian liberalism. According to this view, where constitutional essentials are concerned, the state’s action cannot be justified with reference to the fact that it may promote values, projects, activities or modes of living aimed at the pursuit and achievement of the good life. In other words, justifications for state activity that concerns constitutional essentials should be confined to the advancement and honouring of justice. According to perfectionism, by contrast, the state can deliberately promote values, projects, activities and modes of living aimed at the good life; it can promote conceptions of the good. Kramer is a perfectionist. He argues that the state should invest in the success of the groups to which its citizens belong and that it can do so by promoting excellence in human achievements. This bolsters a variety of conceptions of the good, including those that value specific forms of such excellence. But Kramer argues that this is compatible with the Rawlsian liberal project. How? Because the excellence of one’s society or the achievements of outstanding individuals in one’s society bolsters the warranted self-respect of those who belong to the society. And, as Rawls sets it out, justice requires that individuals have a warranted sense of self-respect.","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"63 1","pages":"81-91"},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUY001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42609031","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":"Introduction to the Symposium on Matthew Kramer’s Liberalism with Excellence","authors":"Paul Billingham, Anthony Taylor","doi":"10.1093/AJJ/AUY003","DOIUrl":"https://doi.org/10.1093/AJJ/AUY003","url":null,"abstract":"","PeriodicalId":39920,"journal":{"name":"American Journal of Jurisprudence","volume":"63 1","pages":"1-7"},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/AJJ/AUY003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46483652","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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