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The concept of law

New York: Oxford University Press (1961)

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  1. Complexity begets crosscutting, dooms hierarchy.Joyce C. Havstad - 2021 - Synthese 198 (8):7665-7696.
    There is a perennial philosophical dream of a certain natural order for the natural kinds. The name of this dream is ‘the hierarchy requirement’. According to this postulate, proper natural kinds form a taxonomy which is both unique and traditional. Here I demonstrate that complex scientific objects exist: objects which generate different systems of scientific classification, produce myriad legitimate alternatives amongst the nonetheless still natural kinds, and make the hierarchical dream impossible to realize, except at absurdly great cost. Philosophical hopes (...)
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  • Law and Social Order.Russell Hardin - 2001 - Philosophical Issues 11 (1):61-85.
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  • In Search of Global Health Justice: A Need to Reinvigorate Institutions and Make International Law.Shawn H. E. Harmon - 2015 - Health Care Analysis 23 (4):352-375.
    The recent outbreak of Ebola in West Africa has killed thousands of people, including healthcare workers. African responses have been varied and largely ineffective. The WHO and the international community’s belated responses have yet to quell the epidemic. The crisis is characteristic of a failure to properly comply with the International Health Regulations 2005. More generally, it stems from a failure of international health justice as articulated by a range of legal institutions and instruments, and it should prompt us to (...)
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  • From conditions of equality to demands of justice: equal freedom, motivation and justification in Hobbes, Rousseau and Rawls.Emily Hartz & Carsten Fogh Nielsen - 2015 - Critical Review of International Social and Political Philosophy 18 (1):7-25.
    Equal freedom is the common starting point for most contractual theories of justice from Hobbes and Rousseau to Rawls. But while equal freedom defines a common starting point for these theories, this does not result in a general consensus on the conception of justice. On the contrary, different ways of conceptualizing the contractual starting point leads to different conceptions of the demands of justice. To fully understand the relationship between equal freedom and justice we therefore first need to explicate how (...)
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  • Dyzenhaus on Positivism and Judicial Obligation.Michael Hartney - 1994 - Ratio Juris 7 (1):44-55.
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  • Constraining the Ruler: On Escaping Han Fei's Criticism of Confucian Virtue Politics.Eirik Lang Harris - 2013 - Asian Philosophy 23 (1):43-61.
    One of Han Fei’s most trenchant criticisms against the early Confucian political tradition is that, insofar as its decision-making process revolves around the ruler, rather than a codified set of laws, this process is the arbitrary rule of a single individual. Han Fei argues that there will be disastrous results due to ad hoc decision-making, relationship-based decision-making, and decision-making based on prior moral commitments. I lay out Han Fei’s arguments while demonstrating how Xunzi can successfully counter them. In doing so, (...)
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  • The Legality of Self‐Constitution.Christoph Hanisch - 2015 - Ratio Juris 28 (4):452-469.
    An influential strand in recent action-theory employs constitutivist arguments in order to present accounts of individual agency and practical identity. I argue for an extension of this framework into the interpersonal realm, and suggest using it to reassess issues in jurisprudence. A legal system is an instantiation of the solution to the inescapable tasks of self-constituting action and identity-formation in the presence of other agents. Law's validity and normativity can be enlightened when the constitutivist approach considers the external prerequisites of (...)
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  • Towards a Theory of Moral Education.Michael Hand - 2014 - Journal of Philosophy of Education 48 (4):519-532.
    In this inaugural lecture, delivered at the University of Birmingham in January 2014, I sketch the outline of a theory of moral education. The theory is an attempt to resolve the tension between two thoughts widely entertained by teachers, policy-makers and the general public. The first thought is that morality must be learned: children must come to see what morality requires of them and acquire the motivation to submit to its authority. The second thought is that morality is controversial: there (...)
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  • Moral education and the justification of basic moral standards: Replies to Clayton, Stevens and D’Olimpio.Michael Hand - 2019 - Journal of Moral Education 48 (4):529-539.
    Matthew Clayton, David Stevens and Laura D’Olimpio have advanced a series of objections to arguments I set out in my recent book A Theory of Moral Education – in particular to the problem-of-sociality justification for basic moral standards. Here I reply to their objections.
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  • The Wholehearted Professional.Richard Paul Hamilton - 2016 - Journal of Value Inquiry 50 (4):735-751.
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  • Formalizing multiple interpretation of legal knowledge.Andreas Hamfelt - 1995 - Artificial Intelligence and Law 3 (4):221-265.
    A representation methodology for knowledge allowing multiple interpretations is described. It is based on the following conception of legal knowledge and its open texture. Since indeterminate, legal knowledge must be adapted to fit the circumstances of the cases to which it is applied. Whether a certain adaptation is lawful or not is measured by metaknowledge. But as this too is indeterminate, its adaptation to the case must be measured by metametaknowledge, etc. This hierarchical model of law is quite well-established and (...)
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  • Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law.Frank Haldemann - 2005 - Ratio Juris 18 (2):162-178.
    . Can the label “law” apply to rules as amoral as the enactments of the Nazis? This question confronted the courts in Germany after 1945. In dealing with it, the judges had to take sides in the philosophical debate over the concept of law. In this context, the prominent voices of the legal philosophers Gustav Radbruch and Hans Kelsen could not go unheard. This paper draws on what could have been the “Radbruch‐Kelsen debate on Nazi Law.” In examining the debate, (...)
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  • Hard cases: A procedural approach. [REVIEW]Jaap C. Hage, Ronald Leenes & Arno R. Lodder - 1993 - Artificial Intelligence and Law 2 (2):113-167.
    Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...)
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  • A theory of legal reasoning and a logic to match.Jaap Hage - 1996 - Artificial Intelligence and Law 4 (3-4):199-273.
    This paper describes a model of legal reasoning and a logic for reasoning with rules, principles and goals that is especially suited to this model of legal reasoning. The paper consists of three parts. The first part describes a model of legal reasoning based on a two-layered view of the law. The first layer consists of principles and goals that express fundamental ideas of a legal system. The second layer contains legal rules which in a sense summarise the outcome of (...)
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  • A model of juridical acts: part 1: the world of law. [REVIEW]Jaap Hage - 2011 - Artificial Intelligence and Law 19 (1):23-48.
    This paper aims at providing an account of juridical acts that forms a suitable starting point for the creation of computational systems that deal with juridical acts. The paper is divided into two parts. Because juridical acts will be analyzed as intentional changes in the world of law, the ‘furniture’ of this world, that consists broadly speaking of entities, facts and rules, plays a central role in the analysis. This first part of the paper deals with this furniture and its (...)
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  • The pluralistic universe of law: Towards a neo-classical legal pragmatism.Susan Haack - 2008 - Ratio Juris 21 (4):453-480.
    After a brief sketch of the history of philosophical pragmatism generally, and of legal pragmatism specifically (section 1), this paper develops a new, neo-classical legal pragmatism: a theory of law drawing in part on Holmes, but also on ideas from the classical pragmatist tradition in philosophy. Main themes are the "pluralistic universe" of law (section 2); the evolution of legal systems (section 3); the place of logic in the law (section 4); and the relation of law and morality (section 5).
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  • Resources for Research on Analogy: A Multi-disciplinary Guide.Marcello Guarini, Amy Butchart, Paul Simard Smith & Andrei Moldovan - 2009 - Informal Logic 29 (2):84-197.
    Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...)
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  • Ought-Sentences and the Juristic Description of Rules.Riccardo Guastini - 1991 - Ratio Juris 4 (3):308-321.
    Abstract.According to the normative theory of legal science, juristic ought‐sentences describe rules, since legal science just deals with rules, and rules cannot be described but by means of ought‐sentences. The author challenges this view. Two different constructions of “describing rules” are proposed: Namely, either interpreting or stating the validity of rules. “Interpreting rules,” in its turn, can be understood in three different senses: listing all the possible meanings of rule‐formulations, reporting the different interpretations a rule‐formulation has in fact received by (...)
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  • Invalidity.Riccardo Guastini - 1994 - Ratio Juris 7 (2):212-226.
    According to the common thinking of continental European lawyers, a rule is invalid each and every time either it was not produced in accordance with the metarules which govern the production of rules in the system, or it is inconsistent with a “superior” (higher‐ranked) rule belonging to the same system. Thus, a better understanding of the concept of invalidity demands a careful inquiry into the various kinds of meta‐rules which govern the production of rules as well as into the various (...)
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  • Fragments of a Theory of Legal Sources.Riccardo Guastini - 1996 - Ratio Juris 9 (4):364-386.
    The author discusses a number of issues in the theory of legal sources. The first topic is whether sources should be conceived of as acts or texts. The alternatives are connected with two competing theories of legal interpretation (viz., the cognitive theory and the sceptical theory), which entail different concepts of legal rules and law‐making. The second topic is whether a “formal” or a “material” criterion of recognition of sources should be preferred. The third section is devoted to the analysis (...)
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  • Articulating Reasons: An Introduction to Inferentialism.Steven Gross - 2002 - Philosophical Review 111 (2):284.
    This is a book review of: Robert B. Brandom, Articulating Reasons: An Introduction to Inferentialism. Cambridge: Harvard University Press, 2000. Pp. 230.
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  • Easy cases and value incommensurability.Stephen R. Grimm - 2007 - Ratio 20 (1):26–44.
    Several critics have denied value incommensurability – or the claim, roughly, that there is no common measure in terms of which values can be weighed – on the basis of what we might call the argument from easy cases. Although the argument from easy cases is quite popular, what is much less often discussed is what exactly the argument entails – in other words, what sort of further commitments the argument generates. Suppose we grant that easy cases point to the (...)
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  • The Jury and Criminal Responsibility in Anglo-American History.Thomas A. Green - 2015 - Criminal Law and Philosophy 9 (3):423-442.
    Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional (...)
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  • Legal positivism and the separation of existence and validity.Matthew Grellette - 2010 - Ratio Juris 23 (1):22-40.
    This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive (...)
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  • Legal Enforcement of Morality.Kent Greenawalt - 2010 - In Dennis Patterson (ed.), A Companion to Philosophy of Law and Legal Theory. Oxford, UK: Wiley‐Blackwell. pp. 467–478.
    This chapter contains sections titled: Legal Enforcement of Moral Norms against Causing Harm Legal Requirements to Perform Acts That Benefit Others Requirements to Refrain from Acts that Cause Indirect Harm to Others Requirements to Refrain from Actions That Hurt Oneself Requirements to Refrain from Acts That Offend Others Requirements to Refrain from Acts Others Believe Are Immoral References.
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  • Hart's Rule of Recognition and the United States.Kent Greenawalt - 1988 - Ratio Juris 1 (1):40-57.
    This essay explores the implications of H.L.A. Hart's rule of recognition for identifying ultimate standards of law in the United States. The effort reveals that these standards are much more complex than is commonly supposed. Not all of the federal constitution is part of the “ultimate” rule of recognition, and much else must be included in that rule. The analysis uncovers many possibilities for how ultimate standards relate to derivative standards that are omitted or barely hinted at in Hart's account. (...)
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  • Secret Laws.Claire Grant - 2012 - Ratio Juris 25 (3):301-317.
    There is a thesis that legal rules need to be made public because people cannot guide their conduct by rules they cannot know. This thesis has been a mainstay of anti-positivism and the controversy over it continues apace. However, positivism can accommodate the secret laws thesis. The deeper import of the debate over secret laws concerns our understanding of law's nature. In this regard secrecy merits attention as a candidate necessary connection between law and immorality. In addition the mediating role (...)
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  • Rules and the effectiveness of the hidden curriculum.David Gordon - 1983 - Journal of Philosophy of Education 17 (2):207–218.
    David Gordon; Rules and the Effectiveness of the Hidden Curriculum, Journal of Philosophy of Education, Volume 17, Issue 2, 30 May 2006, Pages 207–218, https://.
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  • Searching for character and the role of schools.Joan F. Goodman - 2018 - Ethics and Education 14 (1):15-35.
    ABSTRACTDespite a resurgence of interest in character education, just what ‘character’ means is contested. Two strands, while overlapping, diverge on several questions: Is character centrally about moral qualities or more inclusive? Does it consist of one or multiple traits? Does it regard virtue as independently or instrumentally good? Is character a set of dispositions or behaviors? Is it a matter of reflection and reason or habits and skills? Those aligned with the first part of each dichotomy I label purists, the (...)
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  • Managing Scarcity: Toward a More Political Theory of Justice.Robert E. Goodin - 2001 - Philosophical Issues 11 (1):202-228.
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  • Dworkin and Phenomenology of the “Pre‐Legal”?Dean Goorden - 2012 - Ratio Juris 25 (3):393-408.
    Ronald Dworkin states in his preface to “Law's Empire” that he is doing a phenomenology of law. In regards to a phenomenology of law, I wish to investigate Dworkin's theory of law, and subsequently, what is left out in order for it to be considered a phenomenological account. In doing so, I will compare Dworkin's phenomenology of law to Schütz's phenomenology of the social world. The comparison between the two will illuminate what I believe is necessary for law, and that (...)
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  • The Hart‐Fuller Debate.Juan Vega Gomez - 2014 - Philosophy Compass 9 (1):45-53.
    I will center the discussion of the Hart-Fuller debate on the five claims Hart mentions might be understood as legal positivisms main tenets: (1) the command theory; (2) the no necessary connection thesis; (3) the methodological claim; (4) the charge of positivism as formalism and the problem of interpretation; and (5) the meta-ethical confusion. In light of these five claims, I will explore whether the exchange of views between Hart and Fuller in 1957 truly amounted to a debate. Sorting out (...)
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  • Political Constitutionalism and the Question of Constitution‐Making.Marco Goldoni - 2014 - Ratio Juris 27 (3):387-408.
    The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent (...)
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  • Defeasibility in Judicial Opinion: Logical or Procedural?David Godden & Douglas Walton - 2008 - Informal Logic 28 (1):6-19.
    While defeasibility in legal reasoning has been the subject of recent scholarship, it has yet to be studied in the context of judicial opinion. Yet, being subject to appeal, judicial decisions can default for a variety of reasons. Prakken (2001) argued that the defeasibility affecting reasoning involved in adversarial legal argumentation is best analysed as procedural rather than logical. In this paper we argue that the defeasibility of ratio decendi is similarly best explained and modeled in a procedural and dialectical (...)
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  • The Basic Structure of the Institutional Imagination.James Gledhill - 2014 - Journal of Social Philosophy 45 (2):270-290.
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  • Ways of understanding diversity among theories of law.Michael Giudice - 2004 - Law and Philosophy 24 (5):509-545.
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  • The regular practice of morality in law.Michael Giudice - 2008 - Ratio Juris 21 (1):94-106.
    This article examines the possibility of moral considerations and arguments serving as validity conditions of law in legal positivist theory. I argue that, despite recent attempts, this possibility has yet to be established. My argument turns on a defense of Joseph Raz's Sources Thesis, yet I do not adopt his famous “argument from authority.” Rather, I offer a renewed defense of the distinction between creation and application of law and argue that moral considerations and arguments, whether recognized in law or (...)
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  • Social convention revisited.Margaret Gilbert - 2008 - Topoi (1-2):5-16.
    This article will compare and contrast two very different accounts of convention: the game-theoretical account of Lewis in Convention, and the account initially proposed by Margaret Gilbert (the present author) in chapter six of On Social Facts, and further elaborated here. Gilbert’s account is not a variant of Lewis’s. It was arrived at in part as the result of a detailed critique of Lewis’s account in relation to a central everyday concept of a social convention. An account of convention need (...)
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  • In search of sociality.Margaret Gilbert - 1998 - Philosophical Explorations 1 (3):233 – 241.
    This paper reviews some of the growing body of work in the analytic philosophy of social phenomena, with special reference to the question whether adequate accounts of particular social phenomena can be given in terms that are individualistic in a sense that is specified. The discussion focusses on accounts of what have come to be known as shared intention and action. There is also some consideration of accounts of social convention and collective belief. Particular attention is paid to the need (...)
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  • Collective epistemology.Margaret Gilbert - 2004 - Episteme 1 (2):95--107.
    This paper introduces the author's approach to everyday ascriptions of collective cognitive states as in such statements as we believe he is lying. Collective epistemology deals with these ascriptions attempting to understand them and the phenomena in question.
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  • Can a Wise Society Be a Free One?Margaret Gilbert - 2006 - Southern Journal of Philosophy 44 (S1):151-167.
    This article invokes the idea of a wise society, something that has received little attention from contemporary philosophers. It argues that, given plausible interpretations of the relevant terms, the wiser a society is, the less free it is. Even if one prefers a different account of a wise society, the argument in question is significant, for on this account a wise society possesses features that would seem to be desirable whatever their relationship to wisdom in particular: it makes many true (...)
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  • Natural Law and Vengeance: Jurisprudence on the Streets of Gotham.Thomas Giddens - 2015 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 28 (4):765-785.
    Batman is allied with modern natural law in the way he relies upon reason to bring about his vision of ‘true justice’, operating as a force external to law. This vision of justice is a protective one, with Batman existing as a guardian—a force for resistance against the corruption of the state and the failures of the legal system. But alongside his rational means, Batman also employs violence as he moves beyond the boundaries of the civilised state into the dark (...)
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  • Was Ellen Wronged?Stephen P. Garvey - 2013 - Criminal Law and Philosophy 7 (2):185-216.
    Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...)
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  • The Legality of Law.John Gardner - 2004 - Ratio Juris 17 (2):168-181.
    In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of (...)
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  • Rawlsian Stability.Jon Garthoff - 2016 - Res Publica 22 (3):285-299.
    Despite great advances in recent scholarship on the political philosophy of John Rawls, Rawls’s conception of stability is not fully appreciated. This essay aims to remedy this by articulating a more complete understanding of stability and its role in Rawls’s theory of justice. I argue that even in A Theory of Justice Rawls maintains that within liberal democratic constitutionalism judgments of relative stability typically adjudicate decisively among conceptions of justice and is committed to more deeply than to the substantive content (...)
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  • Legitimacy is Not Authority.Jon Garthoff - 2010 - Law and Philosophy 29 (6):669-694.
    The two leading traditions of theorizing about democratic legitimacy are liberalism and deliberative democracy. Liberals typically claim that legitimacy consists in the consent of the governed, while deliberative democrats typically claim that legitimacy consists in the soundness of political procedures. Despite this difference, both traditions see the need for legitimacy as arising from the coercive enforcement of law and regard legitimacy as necessary for law to have normative authority. While I endorse the broad aims of these two traditions, I believe (...)
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  • How to Understand Rule-Constituted Kinds.Manuel García-Carpintero - 2021 - Review of Philosophy and Psychology 13 (1):7-27.
    The paper distinguishes between two conceptions of kinds defined by constitutive rules, the one suggested by Searle, and the one invoked by Williamson to define assertion. Against recent arguments to the contrary by Maitra, Johnson and others, it argues for the superiority of the latter in the first place as an account of games. On this basis, the paper argues that the alleged disanalogies between real games and language games suggested in the literature in fact don’t exist. The paper relies (...)
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  • Vagueness, tolerance and contextual logic.Haim Gaifman - 2010 - Synthese 174 (1):5 - 46.
    The goal of this paper is a comprehensive analysis of basic reasoning patterns that are characteristic of vague predicates. The analysis leads to rigorous reconstructions of the phenomena within formal systems. Two basic features are dealt with. One is tolerance: the insensitivity of predicates to small changes in the objects of predication (a one-increment of a walking distance is a walking distance). The other is the existence of borderline cases. The paper shows why these should be treated as different, though (...)
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  • Human Rationality Challenges Universal Logic.Brian R. Gaines - 2010 - Logica Universalis 4 (2):163-205.
    Tarski’s conceptual analysis of the notion of logical consequence is one of the pinnacles of the process of defining the metamathematical foundations of mathematics in the tradition of his predecessors Euclid, Frege, Russell and Hilbert, and his contemporaries Carnap, Gödel, Gentzen and Turing. However, he also notes that in defining the concept of consequence “efforts were made to adhere to the common usage of the language of every day life.” This paper addresses the issue of what relationship Tarski’s analysis, and (...)
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  • Why narrative is not enough.Steve Fuller - 1991 - Social Epistemology 5 (1):70 – 74.
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