Pub Date : 2022-06-01DOI: 10.1017/S1352325222000064
Marcin Matczak
ABSTRACT Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis. Three arguments are proffered to support this contention. First, Millikan's conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism's ability to explain how law emerges from social practices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan's conventionalism can more effectively repel Dworkin's and Greenberg's assaults on legal positivism than its Lewisian counterpart. To the memory of Maurice O'Brien
{"title":"RUTH G. MILLIKAN'S CONVENTIONALISM AND LAW","authors":"Marcin Matczak","doi":"10.1017/S1352325222000064","DOIUrl":"https://doi.org/10.1017/S1352325222000064","url":null,"abstract":"ABSTRACT Conventionalism once seemed an attractive way to justify the viability of the positivistic social thesis. Subsequent criticism, however, has significantly lessened its attractiveness. This paper attempts to revive jurisprudential interest in conventionalism by claiming that positivists would profit more from the conventionalism of Ruth G. Millikan than that of David Lewis. Three arguments are proffered to support this contention. First, Millikan's conventionalism is not vulnerable to the major criticism leveled at conventionalism, viz its compliance-dependence (i.e., the main reason to follow a convention is that other social actors do so), as this is not its defining feature. Second, Millikanian conventionalism retains conventionalism's ability to explain how law emerges from social practices while avoiding the main disadvantage of Lewisian conventionalism, viz its inability to explain the normativity and contestability of law. Third, Millikan's conventionalism can more effectively repel Dworkin's and Greenberg's assaults on legal positivism than its Lewisian counterpart. To the memory of Maurice O'Brien","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"28 1","pages":"146 - 178"},"PeriodicalIF":0.6,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45482581","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}
Pub Date : 2022-06-01DOI: 10.1017/S1352325222000076
Hanoch Dagan, Avihay Dorfman
ABSTRACT This article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the social order as a whole. Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree.
{"title":"PRECONTRACTUAL JUSTICE","authors":"Hanoch Dagan, Avihay Dorfman","doi":"10.1017/S1352325222000076","DOIUrl":"https://doi.org/10.1017/S1352325222000076","url":null,"abstract":"ABSTRACT This article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the social order as a whole. Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"28 1","pages":"89 - 123"},"PeriodicalIF":0.6,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43337739","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}
Pub Date : 2022-05-23DOI: 10.1017/S1352325222000052
D. Dorsey
ABSTRACT The wishes of the dead seem to have normative significance. We not only respect last wills and testaments, but we take seriously what the dead loved, what they valued, even after they have long escaped this mortal coil. But this presents a philosophical puzzle. Is this a normatively justified practice? Why should the fact that some dead person preferred state of affairs x to state of affairs y be a reason to bring about x rather than y—especially if there is otherwise reason to promote y rather than x? In this paper, I argue that extant solutions to this problem are inadequate and propose an alternative. I argue that the normative significance of the wishes of the dead is to be found not in the dead's well-being or interests, but instead in the relations of friendship we bear to the dead.
{"title":"FRIENDSHIP AND THE WISHES OF THE DEAD","authors":"D. Dorsey","doi":"10.1017/S1352325222000052","DOIUrl":"https://doi.org/10.1017/S1352325222000052","url":null,"abstract":"ABSTRACT The wishes of the dead seem to have normative significance. We not only respect last wills and testaments, but we take seriously what the dead loved, what they valued, even after they have long escaped this mortal coil. But this presents a philosophical puzzle. Is this a normatively justified practice? Why should the fact that some dead person preferred state of affairs x to state of affairs y be a reason to bring about x rather than y—especially if there is otherwise reason to promote y rather than x? In this paper, I argue that extant solutions to this problem are inadequate and propose an alternative. I argue that the normative significance of the wishes of the dead is to be found not in the dead's well-being or interests, but instead in the relations of friendship we bear to the dead.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"28 1","pages":"124 - 145"},"PeriodicalIF":0.6,"publicationDate":"2022-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44870018","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}
Pub Date : 2022-03-01DOI: 10.1017/S1352325222000015
R. Healey
ABSTRACT Recent years have seen a proliferation of philosophical work on consent. Within this body of work, philosophers often appeal to an account of the interests, values, or functions that underpin the power of consent. By far the most commonly cited value realized by the power of consent is the promotion and protection of the power-holder's autonomy. This focus on autonomy yields what I call the Gate Opener Model of consent, according to which the central valuable function of consent is to give the power-holder control over whether other people can act in certain ways. In this article, I argue that the Gate Opener Model of consent is inadequate. I then defend an alternative Relational Model of consent, according to which a central valuable function of consent is to enable a non-instrumentally valuable form of interaction between people.
{"title":"CONSENT, INTERACTION, AND THE VALUE OF SHARED UNDERSTANDING","authors":"R. Healey","doi":"10.1017/S1352325222000015","DOIUrl":"https://doi.org/10.1017/S1352325222000015","url":null,"abstract":"ABSTRACT Recent years have seen a proliferation of philosophical work on consent. Within this body of work, philosophers often appeal to an account of the interests, values, or functions that underpin the power of consent. By far the most commonly cited value realized by the power of consent is the promotion and protection of the power-holder's autonomy. This focus on autonomy yields what I call the Gate Opener Model of consent, according to which the central valuable function of consent is to give the power-holder control over whether other people can act in certain ways. In this article, I argue that the Gate Opener Model of consent is inadequate. I then defend an alternative Relational Model of consent, according to which a central valuable function of consent is to enable a non-instrumentally valuable form of interaction between people.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"28 1","pages":"35 - 58"},"PeriodicalIF":0.6,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49290133","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}
Pub Date : 2022-03-01DOI: 10.1017/s1352325222000040
M. Berman, Scott Hershovitz, Connie S. Rosati, Scott J. Shapiro
{"title":"From the Editors","authors":"M. Berman, Scott Hershovitz, Connie S. Rosati, Scott J. Shapiro","doi":"10.1017/s1352325222000040","DOIUrl":"https://doi.org/10.1017/s1352325222000040","url":null,"abstract":"","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"28 1","pages":"1 - 2"},"PeriodicalIF":0.6,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47918155","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}
Pub Date : 2022-02-21DOI: 10.1017/S1352325221000264
Michael P. Foran
ABSTRACT This article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article argues that personal characteristics that are generally morally irrelevant, and that are socially salient in that they carry with them a prevalence of inequality-laden attitudes, amount to necessary and jointly sufficient conditions for recognizing a ground of unlawful discrimination. Other conditions, such as immutability and the presence of relative group disadvantage, will be assessed and dismissed as contingent but not necessary conditions.
{"title":"GROUNDING UNLAWFUL DISCRIMINATION","authors":"Michael P. Foran","doi":"10.1017/S1352325221000264","DOIUrl":"https://doi.org/10.1017/S1352325221000264","url":null,"abstract":"ABSTRACT This article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article argues that personal characteristics that are generally morally irrelevant, and that are socially salient in that they carry with them a prevalence of inequality-laden attitudes, amount to necessary and jointly sufficient conditions for recognizing a ground of unlawful discrimination. Other conditions, such as immutability and the presence of relative group disadvantage, will be assessed and dismissed as contingent but not necessary conditions.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"28 1","pages":"3 - 34"},"PeriodicalIF":0.6,"publicationDate":"2022-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45851720","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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