Pub Date : 2021-09-01DOI: 10.1017/S135232522100015X
Adam Rigoni
ABSTRACT Legal reasoning is commonly thought of as being based on either rules or analogies. More specifically, there is ongoing debate regarding whether precedential reasoning is best characterized as rule-based or analogical. This article continues that work by comparing recent and representative approaches from each camp, namely, Stevens's analogical model and the “rule-based” model of Horty and Rigoni. In the course of the comparison improvements on each approach are suggested and the improved models serve as the basis for the ultimate evaluation. The evaluation demonstrates that the “best” approach depends on the goals one has in theorizing legal reasoning as well as the jurisprudential assumptions one is willing to make.
{"title":"AA-RM WRESTLING: COMPARING ANALOGICAL APPROACHES AND RULE MODELS FOR LEGAL REASONING","authors":"Adam Rigoni","doi":"10.1017/S135232522100015X","DOIUrl":"https://doi.org/10.1017/S135232522100015X","url":null,"abstract":"ABSTRACT Legal reasoning is commonly thought of as being based on either rules or analogies. More specifically, there is ongoing debate regarding whether precedential reasoning is best characterized as rule-based or analogical. This article continues that work by comparing recent and representative approaches from each camp, namely, Stevens's analogical model and the “rule-based” model of Horty and Rigoni. In the course of the comparison improvements on each approach are suggested and the improved models serve as the basis for the ultimate evaluation. The evaluation demonstrates that the “best” approach depends on the goals one has in theorizing legal reasoning as well as the jurisprudential assumptions one is willing to make.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"27 1","pages":"207 - 235"},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43953997","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 : 2021-09-01DOI: 10.1017/S1352325221000148
Bas van der Vossen
Abstract John Rawls wrote that people can voluntarily acquire political obligations to institutions only on the condition that those institutions are at least reasonably just. When an institution is seriously unjust, by contrast, attempts to create political obligation are “void ab initio.” However, Rawls's own explanation for this thought was deeply problematic, as are the standard alternatives. In this paper, I offer an argument for why Rawls's intuition was right and trace its implications for theories of authority and political obligation. These, I claim, are more radical than is often thought.
{"title":"CONSENT TO UNJUST INSTITUTIONS","authors":"Bas van der Vossen","doi":"10.1017/S1352325221000148","DOIUrl":"https://doi.org/10.1017/S1352325221000148","url":null,"abstract":"Abstract John Rawls wrote that people can voluntarily acquire political obligations to institutions only on the condition that those institutions are at least reasonably just. When an institution is seriously unjust, by contrast, attempts to create political obligation are “void ab initio.” However, Rawls's own explanation for this thought was deeply problematic, as are the standard alternatives. In this paper, I offer an argument for why Rawls's intuition was right and trace its implications for theories of authority and political obligation. These, I claim, are more radical than is often thought.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"27 1","pages":"236 - 251"},"PeriodicalIF":0.6,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49015885","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 : 2021-06-01DOI: 10.1017/S1352325221000124
Gideon Elford
ABSTRACT Much legal and philosophical work has been devoted to discussing the importance of protecting freedom of expression from legislative curtailment by the state. That state-centric focus has meant that the ways that wider social phenomena can stifle freedom of expression have, with a notable exception, escaped sustained philosophical attention. The paper reflects on the nature of socially coercive restrictions on free expression and offers an account of how it is appropriate to respond to such forms of social coercion. First, it considers a range of social costs pertaining to expression and argues that such costs can constitute meaningful restrictions on the freedom to express. Second, it reflects on the normative implications concerning that threat to free expression and defends two related moral duties citizens have to refrain from being complicit in unjustified social coercion—a duty of expressive toleration and a duty of respect for expressive agency.
{"title":"FREEDOM OF EXPRESSION AND SOCIAL COERCION","authors":"Gideon Elford","doi":"10.1017/S1352325221000124","DOIUrl":"https://doi.org/10.1017/S1352325221000124","url":null,"abstract":"ABSTRACT Much legal and philosophical work has been devoted to discussing the importance of protecting freedom of expression from legislative curtailment by the state. That state-centric focus has meant that the ways that wider social phenomena can stifle freedom of expression have, with a notable exception, escaped sustained philosophical attention. The paper reflects on the nature of socially coercive restrictions on free expression and offers an account of how it is appropriate to respond to such forms of social coercion. First, it considers a range of social costs pertaining to expression and argues that such costs can constitute meaningful restrictions on the freedom to express. Second, it reflects on the normative implications concerning that threat to free expression and defends two related moral duties citizens have to refrain from being complicit in unjustified social coercion—a duty of expressive toleration and a duty of respect for expressive agency.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"27 1","pages":"149 - 175"},"PeriodicalIF":0.6,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47512559","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 : 2021-06-01DOI: 10.1017/S1352325221000082
C. Bublitz
ABSTRACT This paper explores a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights and based on a psychological dual-process model of decision-making. Debunking arguments undermine confidence in a belief because of shortcomings of the empirical conditions under which it was formed. They thereby open a route from the descriptive to the evaluative, from Is to Ought, without illicitly crossing metaethical waters since they involve normative premises. As they are epistemic, they cannot replace substantive arguments on the merits. However, they may be useful when substantive arguments are stalled or the necessity to make a judgment precludes further discussions. The controversial justification of human rights is a good test case for debunking arguments. The challenge is to find features in the formation of beliefs about human rights that undermine their epistemic justification. Some psychologists claim that relevant beliefs arise from the rationalization of intuitions. This process is ill-suited to generate correct beliefs; so formed beliefs may be debunked. This also shows how legal reasoning might be improved.
{"title":"RIGHTS AS RATIONALIZATIONS? PSYCHOLOGICAL DEBUNKING OF BELIEFS ABOUT HUMAN RIGHTS","authors":"C. Bublitz","doi":"10.1017/S1352325221000082","DOIUrl":"https://doi.org/10.1017/S1352325221000082","url":null,"abstract":"ABSTRACT This paper explores a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights and based on a psychological dual-process model of decision-making. Debunking arguments undermine confidence in a belief because of shortcomings of the empirical conditions under which it was formed. They thereby open a route from the descriptive to the evaluative, from Is to Ought, without illicitly crossing metaethical waters since they involve normative premises. As they are epistemic, they cannot replace substantive arguments on the merits. However, they may be useful when substantive arguments are stalled or the necessity to make a judgment precludes further discussions. The controversial justification of human rights is a good test case for debunking arguments. The challenge is to find features in the formation of beliefs about human rights that undermine their epistemic justification. Some psychologists claim that relevant beliefs arise from the rationalization of intuitions. This process is ill-suited to generate correct beliefs; so formed beliefs may be debunked. This also shows how legal reasoning might be improved.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"27 1","pages":"97 - 125"},"PeriodicalIF":0.6,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43641823","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 : 2021-06-01DOI: 10.1017/S1352325221000094
Vincent Chiao
Abstract On a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather than conclude that the rule of law is inimical to the administrative state, however, I defend an alternative conception of the rule of law. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials in the exercise of their legal powers. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.
{"title":"HYPERLEXIS AND THE RULE OF LAW","authors":"Vincent Chiao","doi":"10.1017/S1352325221000094","DOIUrl":"https://doi.org/10.1017/S1352325221000094","url":null,"abstract":"Abstract On a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather than conclude that the rule of law is inimical to the administrative state, however, I defend an alternative conception of the rule of law. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials in the exercise of their legal powers. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"27 1","pages":"126 - 148"},"PeriodicalIF":0.6,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325221000094","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41752182","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 : 2021-03-01DOI: 10.1017/S1352325221000033
Ira K. Lindsay
ABSTRACT Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.
{"title":"A DEFENSE OF HUMEAN PROPERTY THEORY","authors":"Ira K. Lindsay","doi":"10.1017/S1352325221000033","DOIUrl":"https://doi.org/10.1017/S1352325221000033","url":null,"abstract":"ABSTRACT Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"27 1","pages":"36 - 69"},"PeriodicalIF":0.6,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325221000033","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46369497","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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