Pub Date : 2020-03-01DOI: 10.1017/S1352325220000075
R. Mullins
ABSTRACT According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.
{"title":"PROTECTED REASONS AND PRECEDENTIAL CONSTRAINT","authors":"R. Mullins","doi":"10.1017/S1352325220000075","DOIUrl":"https://doi.org/10.1017/S1352325220000075","url":null,"abstract":"ABSTRACT According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"40 - 61"},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000075","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41764640","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 : 2020-03-01DOI: 10.1017/s1352325220000105
Mitchell N. Berman, Scott Hershovitz, Connie S. Rosati, Scott J. Shapiro
{"title":"From the Editors","authors":"Mitchell N. Berman, Scott Hershovitz, Connie S. Rosati, Scott J. Shapiro","doi":"10.1017/s1352325220000105","DOIUrl":"https://doi.org/10.1017/s1352325220000105","url":null,"abstract":"","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"1 - 2"},"PeriodicalIF":0.6,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/s1352325220000105","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48089999","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 : 2020-02-01DOI: 10.1017/S1352325221000021
Sabine Tsuruda
ABSTRACT This article develops and advances a liberal ideal of equality for evaluating the lawful scope of employer control over employees. It argues that, in addition to attending to discrimination and bargaining power asymmetries, we should ensure that our laws treat workers as the moral equals of their bosses more broadly—as people with equally weighty claims to exercising agency over their own values and lives. To illustrate, the article explains that employer control over workplace expression can preclude colleagues from communicating with each another as moral equals and can compromise employees’ abilities to exercise agency over their own characters. It then discusses how our agential interests in workplace expression can guide legal reform.
{"title":"WORKING AS EQUAL MORAL AGENTS","authors":"Sabine Tsuruda","doi":"10.1017/S1352325221000021","DOIUrl":"https://doi.org/10.1017/S1352325221000021","url":null,"abstract":"ABSTRACT This article develops and advances a liberal ideal of equality for evaluating the lawful scope of employer control over employees. It argues that, in addition to attending to discrimination and bargaining power asymmetries, we should ensure that our laws treat workers as the moral equals of their bosses more broadly—as people with equally weighty claims to exercising agency over their own values and lives. To illustrate, the article explains that employer control over workplace expression can preclude colleagues from communicating with each another as moral equals and can compromise employees’ abilities to exercise agency over their own characters. It then discusses how our agential interests in workplace expression can guide legal reform.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"26 1","pages":"305 - 337"},"PeriodicalIF":0.6,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325221000021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42319784","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 : 2019-12-01DOI: 10.1017/S135232522000004X
Maxime Lepoutre
ABSTRACT According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.
{"title":"HATE SPEECH LAWS: EXPRESSIVE POWER IS NOT THE ANSWER","authors":"Maxime Lepoutre","doi":"10.1017/S135232522000004X","DOIUrl":"https://doi.org/10.1017/S135232522000004X","url":null,"abstract":"ABSTRACT According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"25 1","pages":"272 - 296"},"PeriodicalIF":0.6,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S135232522000004X","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41399339","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 : 2019-12-01DOI: 10.1017/S1352325220000099
Paul Billingham
ABSTRACT The idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial examination of religious organizations’ decisions—focusing on employment decisions—and normatively assessing each kind. I argue that religious groups should enjoy protection from certain kinds of examination, but other kinds are justifiable, and even required. My argument supports an approach similar to that seen in some recent European Court of Human Rights decisions, rather than the less discriminating approach of U.S. courts.
{"title":"THE SCOPE OF RELIGIOUS GROUP AUTONOMY: VARIETIES OF JUDICIAL EXAMINATION OF CHURCH EMPLOYMENT DECISIONS","authors":"Paul Billingham","doi":"10.1017/S1352325220000099","DOIUrl":"https://doi.org/10.1017/S1352325220000099","url":null,"abstract":"ABSTRACT The idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial examination of religious organizations’ decisions—focusing on employment decisions—and normatively assessing each kind. I argue that religious groups should enjoy protection from certain kinds of examination, but other kinds are justifiable, and even required. My argument supports an approach similar to that seen in some recent European Court of Human Rights decisions, rather than the less discriminating approach of U.S. courts.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"25 1","pages":"244 - 271"},"PeriodicalIF":0.6,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000099","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44751690","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 : 2019-12-01DOI: 10.1017/S1352325220000051
Thomas Adams
ABSTRACT “A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an attempt to make up the deficit. I make the case for efficacy as necessary for law and go on to develop and defend an account of the concept that is broadly Kelsenian in spirit. In doing so I address questions concerning the relationship between obedience and enforcement in an account of the existence of a legal system as well as relating the discussion to that concerning the ontological status of international law.
{"title":"THE EFFICACY CONDITION","authors":"Thomas Adams","doi":"10.1017/S1352325220000051","DOIUrl":"https://doi.org/10.1017/S1352325220000051","url":null,"abstract":"ABSTRACT “A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an attempt to make up the deficit. I make the case for efficacy as necessary for law and go on to develop and defend an account of the concept that is broadly Kelsenian in spirit. In doing so I address questions concerning the relationship between obedience and enforcement in an account of the existence of a legal system as well as relating the discussion to that concerning the ontological status of international law.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"25 1","pages":"225 - 243"},"PeriodicalIF":0.6,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325220000051","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43233858","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 : 2019-09-01DOI: 10.1017/S1352325219000119
C. Bennett
ABSTRACT An influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what kind of authority is being claimed by this apparatus. The criminal law, I argue, cannot merely be thought of as claiming a right to rule and to be obeyed. Rather, its authority is better understood as the authority of moral oversight: a power to alter, at will (though within certain limits), citizens’ liability to answer for their compliance with—and to be officially censured for their failure to comply with—a designated set of pre-existing moral 7reasons. The paper then looks at whether a state could realistically be expected to possess such authority—that is, whether a state that claims to have such a power could ever be legitimate.
{"title":"THE AUTHORITY OF MORAL OVERSIGHT: ON THE LEGITIMACY OF CRIMINAL LAW","authors":"C. Bennett","doi":"10.1017/S1352325219000119","DOIUrl":"https://doi.org/10.1017/S1352325219000119","url":null,"abstract":"ABSTRACT An influential view in recent philosophy of punishment is that the apparatus of criminal justice should be geared at least in part to state censure of wrongdoing. I argue that if it were to be so geared, such an apparatus would make ambitious claims to authority, and that the legitimacy of the relevant state would then depend on whether those claims can be vindicated. This paper looks first at what kind of authority is being claimed by this apparatus. The criminal law, I argue, cannot merely be thought of as claiming a right to rule and to be obeyed. Rather, its authority is better understood as the authority of moral oversight: a power to alter, at will (though within certain limits), citizens’ liability to answer for their compliance with—and to be officially censured for their failure to comply with—a designated set of pre-existing moral 7reasons. The paper then looks at whether a state could realistically be expected to possess such authority—that is, whether a state that claims to have such a power could ever be legitimate.","PeriodicalId":44287,"journal":{"name":"Legal Theory","volume":"25 1","pages":"153 - 177"},"PeriodicalIF":0.6,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/S1352325219000119","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43590449","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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