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The separability thesis claims that the concept of law can be explicated independently of morality, the normativity thesis, that it can be explicated independently of fact. Continental normativism, prominent above all in the work of Hans Kelsen, may be characterized in terms of the coupling of these theses. Like Kelsen, H. L. A. Hart is a proponent of the separability thesis. And–a leitmotiv–both theorists reject reductive legal positivism. They do not, however, reject it for the same reasons. Kelsen's reason, in (...) |
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Some libertarians tend to advocate the wide availability of cognition-enhancing drugs beyond their current prescription-only status. They suggest that certain kinds of drugs can be a component of a prudential conception of the ‘good life’—they enhance our opportunities and preferences; and therefore, if a person freely chooses to use them, then there is no justification for the kind of prejudicial, authoritative restrictions that are currently deployed in public policy. In particular, this libertarian idea signifies that if enhancements are a prudential (...) |
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I am grateful to Feeney and colleagues for their thoughtful engagement with, and application of, the normative analysis I developed concerning gene patents in Farrelly (2016). Their exploration of... |
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The law of England and Wales provides that an adult with capacity has the right to refuse medical treatment both contemporaneously and in an advance refusal. Legislation separates general advance refusals of treatment from advance refusals of life-sustaining treatment. The law, outlined in ss.24 to 26 of the Mental Capacity Act 2005, is stricter for creation of the latter. These sections brought with them a new age of interests by purporting to elevate individual autonomy as the primary concern. Beginning with (...) |
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This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's approach, (...) |
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The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at (...) |
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The question of the moral status of AI and the extent to which that status ought to be recognised by societal institutions is one that has not yet received a satisfactory answer from lawyers. This paper seeks to provide a solution to the problem by defending a moral foundation for the recognition of legal personhood for AI, requiring the status to be granted should a threshold criterion be reached. The threshold proposed will be bare, noumenal agency in the Kantian sense. (...) |
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This paper deals with the question of how norms are to be conceived of in order to understand their role as guidelines for human action within various normative orders, particularly in the context of law on the one hand and conventional morality on the other. After some brief remarks on the history of the term “norm,” the author outlines the most significant general features of actually existing social norms, including legal and conventional norms, from which he arrives at two basic (...) |
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It is argued that accepting that there are human rights, or that there are categorically binding requirements of any kind on action, logically requires accepting the PGC (Principle of Generic Consistency) as the supreme criterion of practical reasonableness.Consequently, all legal systems that recognise human rights (hence, the English legal system), all who view law as a matter of obligation, and all who consider that there are categorically binding requirements on action, must take the PGC to be a necessary criterion of (...) |
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Anglo-American authors have paid little attention to a subtle distinction that has important jurisprudential implications. It is the distinction between sources of law and the legal norms which can be derived from sources by means of interpretation. The distinction might also be rendered as a threefold one, separating sources of law from legal norms and both of these from that which mediates their relation, namely, methods of legal interpretation. This paper intends to state the “source-norm” distinction clearly and to give (...) |
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This paper introduces questions about the nature of law. It briefly identifies why modern biotechnology poses interesting issues for regulation. Thereafter it considers two questions—the legitimacy of law, and the relationship between law and morality. It concludes by considering issues of participation and of appealing to the public interest. |
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In 2007, the Ethics and Governance Council of the UK Biobank commissioned a Report on ‘Concepts of Public Good and Pubic Interest in Access Policies’. This study considered the Biobank’s role as a ‘public good’ in respect to supporting and promoting health throughout society. However, the conditions under which access by third parties to UK Biobank are justified in the public interest have not been well considered. In this article, I propose to analyse the conditions that should allow such access. (...) |
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In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss (...) |
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Two claims lay the foundation for Beyleveld and Brownsword’s legal theory. The first says that immoral laws cannot be law, the second that rights to freedom and welfare can be proven to be logically necessary given merely the phenomenon of agency. The author argues that both claims are too strong. The first is an overidealization of law, which fails to do justice to its double nature as a real as well as an ideal phenomenon. The second must fail, for a (...) |
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The dispute between Legal Positivists (eg, Hart) and Natural Lawyers (e.g., Finnis) concerns the existence or otherwise of a necessary (conceptual) connection between law and morality. Legal Positivists such as Hart deny this connection and assert the merely contingent relationship of law and morals. However, it can be demonstrated that implicit in the valid sociological method of concept formation of post‐Austinian Positivists are interpretative or ideal‐typical models of the practical rationality of the legal enterprise which are not, and cannot possibly (...) |
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In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the twin (...) |
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