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  1. Procedure-Content Interaction in Attitudes to Law and in the Value of the Rule of Law: An Empirical and Philosophical Collaboration.Noam Gur & Jonathan Jackson - forthcoming - In Meyerson Denise, Catriona Mackenzie & Therese MacDermott (eds.), Procedural Justice and Relational Theory: Philosophical, Empirical and Legal Perspectives. Routledge.
    This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...)
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  2. Interpreting the Claim of Legitimate Authority: An Analysis of Joseph Raz's Objection Against Incorporating Moral Norms Into Law.Ramiro Ávila Peres - forthcoming - Ethic@ - An International Journal for Moral Philosophy.
    From a critical review of the literature, we analyze the incompatibility between the possibility of incorporating moral principles to the law and its authoritative nature, as argued by exclusive positivists, such as J. Raz. After presenting his argument in second section, we argue in the third section that it is incompatible with commonly accepted (even by Raz) premises of the theory of legal interpretation, or else it would lead to contradiction - unless one presupposes, within the premises, a strong version (...)
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  3. The Nature and Value of Vagueness in the Law.Hrafn Asgeirsson - 2020 - Oxford: Hart Publishing.
    Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague (...)
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  4. Medical Complicity and the Legitimacy of Practical Authority.Kenneth M. Ehrenberg - 2020 - Ethics, Medicine and Public Health 12.
    If medical complicity is understood as compliance with a directive to act against the professional's best medical judgment, the question arises whether it can ever be justified. This paper will trace the contours of what would legitimate a directive to act against a professional's best medical judgment (and in possible contravention of her oath) using Joseph Raz's service conception of authority. The service conception is useful for basing the legitimacy of authoritative directives on the ability of the putative authority to (...)
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  5. Hierarchy, Formal Principles, and a Non-Positivistic Constitutionalism. Comments on Gabriel Encinas’ ‘Interlegal Balancing’.Wei Feng - 2020 - Working Papers of Center for Interlegality Research.
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  6. Ice Cube and the Philosophical Foundations of Community Policing.Luke William Hunt - 2019 - Oxford University Press Blog.
    Essay on police legitimacy through public reason and community policing.
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  7. The Retrieval of Liberalism in Policing.Luke William Hunt - 2019 - New York, NY, USA: Oxford University Press.
    There is a growing sense that many liberal states are in the midst of a shift in legal and political norms—a shift that is happening slowly and for a variety of reasons relating to security. The internet and tech booms—paving the way for new forms of electronic surveillance—predated the 9/11 attacks by several years, while the police’s vast use of secret informants and deceptive operations began well before that. On the other hand, the recent uptick in reactionary movements—movements in which (...)
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  8. Authority and Interest in the Theory of Right.Nieswandt Katharina - 2019 - In David Plunkett, Scott Shapiro & Kevin Toh (eds.), Legal Norms, Moral Norms: New Essays on Metaethics and Jurisprudence. Oxford: Oxford University Press. pp. 315-334.
    I suggest a new role for authority and interest in the theory of right: Rights can be explicated as sets of prohibitions, permissions and commands, and they must be justified by interests. I argue as follows: (1) The two dominant theories of right—“Will Theory” and “Interest Theory”—have certain standard problems. (2) These problems are systematic: Will Theory’s criterion of the ability to enforce a duty is either false or empty outside of its original legal context, whereas Interest Theory includes in (...)
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  9. Do desacordo ao paradoxo epistêmico: uma análise da concepção de serviço de autoridade de Raz à luz da teoria do “ponto-cego” de R. Sorensen.Ramiro Ávila Peres - 2019 - Dissertatio 48:242-257.
    Abstract: Using a critical review of the literature, we study a challenge from philosophical anarchism to J. Raz's theory of legal authority: it would be irrational to follow an order with which one disagrees, since it would mean acting against what is considered more justified. Through references from decision theory and epistemology, and deploying examples about tools for assisting in routine decision-making, we sketch two possible answers: first, it may be justifiable to put yourself in a situation that leads to (...)
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  10. Justifying Prison Breaks as Civil Disobedience.Isaac Shur - 2019 - Aporia 19 (2):14-26.
    I argue that given the persistent injustice present within the Prison Industrial Complex in the United States, many incarcerated individuals would be justified in attempting to escape and that these prison breaks may qualify as acts of civil disobedience. After an introduction in section one, section two offers a critique of the classical liberal conception of civil disobedience envisioned by John Rawls. Contrary to Rawls, I argue that acts of civil disobedience can involve both violence and evasion of punishment, both (...)
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  11. Państwo prawa na gruncie filozofii politycznej Immanuela Kanta – dwie interpretacje.Michał Wieczorkowski - 2019 - Archiwum Filozofii Prawa I Filozofii Społecznej 19 (1):108-124.
    The purpose of this article is to discuss Kant’s concept of juridical state as the foundation of the contemporary rule of law. Therefore, the article tries to answer two questions: (1) what character can be attributed to Kant’s concept of juridical state taking into account the obligations arising from it; (2) can the analysis of the Kantian juridical state have any impact on the contemporary understanding of the rule of law and if so, what can this impact be. In order (...)
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  12. The Relational Conception of Practical Authority.N. Adams - 2018 - Law and Philosophy 37 (5):549-575.
    I argue for a new conception of practical authority based on an analysis of the relationship between authority and subject. Commands entail a demand for practical deference, which establishes a relationship of hierarchy and vulnerability that involves a variety of signals and commitments. In order for these signals and commitments to be justified, the subject must be under a preexisting duty, the authority’s commands must take precedence over the subject’s judgment regarding fulfillment of that duty, the authority must accept the (...)
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  13. “Dreamers” and Others: Immigration Protests, Enforcement, and Civil Disobedience.Matthew J. Lister - 2018 - APA Newsletter on Hispanic/Latino Issues in Philosophy 17 (2):15-17.
    In this short paper I hope to use some ideas drawn from the theory and practice of civil disobedience to address one of the most difficult questions in immigration theory, one rarely addressed by philosophers or other theorists working on the topic: How should we respond to people who violate immigration law? I will start with what I take to be the easiest case for my approach—that of so-called “Dreamers”—unauthorized immigrants in the US who were brought to this country while (...)
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  14. Habermas vs Fish – pytanie o możliwość porozumienia międzykulturowego.Michał Wieczorkowski - 2018 - Folia Iuridica Universitatis Wratislaviensis 7 (1):111-134.
    The purpose of the paper is to analyze the thesis that an agreement between representatives of two different cultures can and should be reached at a theoretical level. The author tries to verify the Theory of Communicative Action proposed by Jürgen Habermas in the light of philosophical reflections of American neopragmatist Stanley Fish. Habermas is one of the most important and widely read social theorists in the post-Second World War era. He is also one of the authors of the concept (...)
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  15. Problem aktywizmu i prawotwórstwa sędziowskiego w świetle współczesnych teorii interpretacji.Michał Wieczorkowski - 2018 - Warsaw University Law Review 17 (2):169-200.
    It causes many difficulties for jurisprudence to define the notion of judicial activism. At the very beginning it had rather a journalistic character, but but over time it has become a serious charge against these judges who act on the basis of their vision of what the law ought to be like rather than what it actually is like. On the ground of the polish legal theory the echoes of the dispute about judicial activism are reflected in the discussions about (...)
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  16. In Defense of Content-Independence.Nathan Adams - 2017 - Legal Theory 23 (3):143-167.
    Discussions of political obligation and political authority have long focused on the idea that the commands of genuine authorities constitute content-independent reasons. Despite its centrality in these debates, the notion of content-independence is unclear and controversial, with some claiming that it is incoherent, useless, or increasingly irrelevant. I clarify content-independence by focusing on how reasons can depend on features of their source or container. I then solve the long-standing puzzle of whether the fact that laws can constitute content-independent reasons is (...)
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  17. Three Kinds of Intention in Lawmaking.Marcin Matczak - 2017 - Law and Philosophy 36 (6):651-674.
    The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic one. A closer examination shows that it is, in fact, an illocutionary one. (...)
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  18. Legal Archetypes and Metadata Collection.Alan Rubel - 2017 - Wisconsin International Law Review 34 (4):823-853.
    In discussions of state surveillance, the values of privacy and security are often set against one another, and people often ask whether privacy is more important than national security.2 I will argue that in one sense privacy is more important than national security. Just what more important means is its own question, though, so I will be more precise. I will argue that national security rationales cannot by themselves justify some kinds of encroachments on individual privacy (including some kinds that (...)
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  19. A Fair Play Account of Legitimate Political Authority.Justin Tosi - 2017 - Legal Theory 23 (1):55-67.
    There is an emerging consensus among political philosophers that state legitimacy involves something more than—or perhaps other than—political obligation. Yet the principle of fair play, which many take to be a promising basis for political obligation, has been largely absent from discussions of the revised conception of legitimacy. This paper shows how the principle of fair play can generate legitimate political authority by drawing on a neglected feature of the principle—its stipulation that members of a cooperative scheme must reciprocate specifically (...)
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  20. Political Anarchism and Raz’s Theory of Authority.Bruno Leipold - 2015 - Res Publica 21 (3):309-329.
    This article argues that using Joseph Raz’s service conception of authority to reject philosophical anarchism can be affected by political anarchism. Whereas philosophical anarchism only denies the authority of the state, political anarchism claims that anarchism is a better alternative to the state. Raz’s theory holds that an institution has authority if it enables people to better conform with reason. I argue that there are cases where anarchism is an existing alternative to the state and better fulfils this condition. Consequently, (...)
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  21. Problem Aksjologicznej Legitymizacji Uniwersalnego Systemu Ochrony Praw Człowieka.Marek Piechowiak - 2015 - In Elżbieta Karska (ed.), Globalne problemy ochrony praw człowieka. Katedra Ochrony Praw Człowieka i Prawa Międzynarodowego UKSW. pp. 86-100.
    Problem of Axiological Legitimization of the Universal System of the Protection of Human Rights Summary In this paper it is argued that legitimization of the universal system (UN-system) of the protection of human rights depends primary not from the content of values recognised as fundamental but rather from metaaxiological solutions related to the way of existence and to the possibility of cognition of these values. Legitimisation is based on the recognition of an objective nature and of cognoscibility of basic values. (...)
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  22. Problem Aksjologicznej Legitymizacji Uniwersalnego Systemu Ochrony Praw Człowieka [Problem of Axiological Legitimization of the Universal System of the Protection of Human Rights].Marek Piechowiak - 2015 - In Elżbieta Karska (ed.), Globalne Problemy Ochrony Praw Człowieka. Katedra Ochrony Praw Człowieka I Prawa Międzynarodowego Uksw. pp. 86-100.
    Problem of Axiological Legitimization of the Universal System of the Protection of Human Rights Summary In this paper it is argued that legitimization of the universal system of the protection of human rights depends primary not from the content of values recognised as fundamental but rather from metaaxiological solutions related to the way of existence and to the possibility of cognition of these values. Legitimisation is based on the recognition of an objective nature and of cognoscibility of basic values. Realisation (...)
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  23. Privacy, Transparency, and Accountability in the NSA’s Bulk Metadata Program.Alan Rubel - 2015 - In Adam D. Moore (ed.), Privacy, Security, and Accountability: Ethics, Law, and Policy. London, UK: pp. 183-202.
    Disputes at the intersection of national security, surveillance, civil liberties, and transparency are nothing new, but they have become a particularly prominent part of public discourse in the years since the attacks on the World Trade Center in September 2001. This is in part due to the dramatic nature of those attacks, in part based on significant legal developments after the attacks (classifying persons as “enemy combatants” outside the scope of traditional Geneva protections, legal memos by White House counsel providing (...)
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  24. Social Norms, The Invisible Hand, and the Law.Jonny Anomaly & Geoffrey Brennan - 2014 - University of Queensland Law Journal 33 (2).
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  25. Political Obligations in a Sea of Tyranny and Crushing Poverty.Aaron Maltais - 2014 - Legal Theory 20 (3):186-209.
    Christopher Wellman is the strongest proponent of the natural-duty theory of political obligations and argues that his version of the theory can satisfy the key requirement of ; namely, justifying to members of a state the system of political obligations they share in. Critics argue that natural-duty theories like Wellman's actually require well-ordered states and/or their members to dedicate resources to providing the goods associated with political order to needy outsiders. The implication is that natural-duty approaches weaken the particularity requirement (...)
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  26. Sprawiedliwość a prawo w nauczaniu Jana Pawła II [Justice and Law in the Teaching of John Paul II].Marek Piechowiak - 2014 - Przegląd Tomistyczny 20:209-237.
    The contribution focuses on philosophical issues of justice of positive law in the light of the social teaching of John Paul II. The analyses start with consideration of anthropological foundations of justice as virtue, develop with the reflexion upon justice of actions realizing justice and finally arrive at examination of the criteria of justice of law. -/- It is argued that relations between a human being and goods (ends of actions) form ontological basis of natural law and justice of actions (...)
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  27. The Binding Force of Nascent Norms of International Law.Anthony R. Reeves - 2014 - Canadian Journal of Law and Jurisprudence 28 (1):145-166.
    Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of (...)
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  28. Law's Authority is Not a Claim to Preemption.Kenneth M. Ehrenberg - 2013 - In Wilfrid J. Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law. Oxford University Press. pp. 51.
    Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt (...)
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  29. Law and the Entitlement to Coerce.Robert C. Hughes - 2013 - In Wilfrid J. Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law. Oxford University Press. pp. 183.
    Many assume that whenever government is entitled to make a law, it is entitled to enforce that law coercively. I argue that the justification of legal authority and the justification of governmental coercion come apart. Both in ideal theory and in actual human societies, governments are sometimes entitled to make laws that they are not entitled to enforce coercively.
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  30. A Critical Examination of Jiri Priban's "Doing What Comes Naturally, or a Walk on the Wild Side? Stanlet Fish's Antifoundationalist Concept of Law, It's Closure and Force".Ross Motabhoy - 2012 - Dissertation, University of Kent
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  31. The Asymmetry of Legitimacy.Bas van der Vossen - 2012 - Law and Philosophy 31 (5):565-592.
    State legitimacy is often said to have two aspects: an internal and an external one. Internally, a legitimate state has the right to rule over its subjects. Externally, it has a right that outsiders not interfere with its domestic governance. But what is the relation between these two aspects? In this paper, I defend a conception of legitimacy according to which these two aspects are related in an importantly asymmetrical manner. In particular, a legitimate state’s external right to rule affords (...)
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  32. Authority in the Common Law.Peter Jaffey - 2011 - Australian Journal of Legal Philosophy 36:1-33.
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  33. Assessing Law's Claim to Authority.Bas van der Vossen - 2011 - Oxford Journal of Legal Studies 31 (3):481-501.
    The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique (...)
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  34. The Moral Authority of International Law.Anthony Reeves - 2010 - APA Newsletter on Philosophy and Law 10 (1):13-18.
    How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has. An authority, as I will use the term, is moral obligation producing: if x (...)
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  35. Modern Times: Law, Temporality and Happiness in Hobbes, Locke and Bentham.José Brunner - 2007 - Theoretical Inquiries in Law 8 (1):277-310.
    This Article shows how three modern English thinkers — Hobbes, Locke and Bentham — construe the law as an intersection of secular eternity on the one one hand and transience in modernity on the other, allowing for immovability and movement at the same time, combining stability with change. It details how these theorists, who undoubtedly have earned themselves places of honor in the canon of modern political thought, tried to solve the problem of self-grounding in three different and yet paradigmatically (...)
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  36. Legal Modernity and Early Amerindian Laws.William Conklin - 1999 - Sociology of Law, Social Problems and Legal Policy:115-128.
    This essay claims that the violence characterizing the 20th century has been coloured by the clash of two very different senses of legal authority. These two senses of legal authority correspond with two very different contexts of civil violence: state secession and the violence characterizing a challenge to a state-centric legal authority. Conklin argues that the modern legal authority represents a quest for a source or foundation. Such a sense of legal authority, according to Conklin, clashes such a view with (...)
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  37. Legislative Duty and the Independence of Law.J. H. Bogart - 1987 - Law and Philosophy 6 (2):187 - 203.
    This essay considers the nature of duties incumbent on legislators in virtue of the office itself. I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral conditions into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality (...)
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  38. Punishment and the Subordination of Law to Morality.John H. Bogart - 1987 - Oxford Journal of Legal Studies 7 (3):421-443.
    Arguments over criminalization and decriminalization often focus on the moral status of conduct, which is thought to be especially important to determining the appropriate legal status of the conduct. If the conduct is not thought to be immoral (or seriously immoral}, that is enough to show that it does not properly fall within the realm of control of the criminal law. Arguments relying on such a strategy may be termed moralized arguments. This article focuses on a crucial element of that (...)
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