Journals

Illusions of Justice in International Taxation

Philosophy & Public Affairs - Wed, 2020-04-29 18:38
Philosophy & Public Affairs, Volume 48, Issue 2, Page 151-184, Spring 2020.
Categories: Journals

Notes on the Contributors

Philosophy & Public Affairs - Wed, 2020-04-29 18:38
Philosophy & Public Affairs, Volume 48, Issue 2, Page 118-118, Spring 2020.
Categories: Journals

Issue Information

Philosophy & Public Affairs - Wed, 2020-04-29 18:38
Philosophy & Public Affairs, Volume 48, Issue 2, Page 115-117, Spring 2020.
Categories: Journals

Repugnance and Perfection

Philosophy & Public Affairs - Tue, 2020-04-28 13:34
Philosophy & Public Affairs, EarlyView.
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Authentic Interpretation

Ratio Juris - Fri, 2020-04-24 20:00
Abstract

I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the lawmaker. The idea that authentic interpretation is interpretation by the lawmaker united the Roman emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the lawmaker. And it is worth identifying the drawbacks in the modern approach; I argue that they are highly relevant to the complex question of how judges ought to interpret legislation.

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A Kantian Interpretation of Kelsen’s Basic Norm

Ratio Juris - Fri, 2020-04-24 09:04
Abstract

This paper proposes a reading of Kelsen’s basic norm based on Kant’s regulative ideas. I begin by exposing Kant’s conception of the principles of reason. Then I criticize an interpretation of the basic norm along the same lines made by Stanley Paulson. Thirdly I analyze two theses from Hermann Cohen that influenced Kelsen greatly and reinforce my stance on the basic norm. Lastly, I explain how the Kelsenian tenet that the basic norm is the transcendental grounding of the normativity of law can be comprehended based on the role the ideas of reason play in the systematization of knowledge.

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Totemism of the Modern State: On Hans Kelsen’s Attempt to Unmask Legal and Political Fictions and Contain Political Theology

Ratio Juris - Fri, 2020-04-24 09:04
Abstract

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and contributes  to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”

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The Potential of Abductive Legal Reasoning

Ratio Juris - Fri, 2020-04-24 09:04
Abstract

The article describes the potential of abductive legal reasoning as a means of systematically exploring the role of inferences within legal reasoning. Starting out from the structures of abduction as originally presented by Peirce in his four‐horsemen example, the author points to the fact that Peirce actually employed a hypothesis that targeted an institutional fact. Hence the abductive inference has a great potential for categorising new phenomena under norms, yet it is undertheorised within the field of law as compared to other fields of science. The article presents the idea of comparison in the frame of “double abduction” as an important feature of legal reasoning.

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The Political Literacy of Experts

Ratio Juris - Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 82-97, March 2020.
Categories: Journals

The Indigenous Rights State

Ratio Juris - Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 98-116, March 2020.
Categories: Journals

On the Connection between Law and Morality: Some Doubts about Robert Alexy’s View

Ratio Juris - Fri, 2020-04-24 09:04
Abstract

The paper aims at a critical discussion of Alexy’s conception of the relationship between law and morality, which is known to insist on their necessary connection. After a brief recapitulation of this conception, the author scrutinizes three of its essential elements: the thesis of the dual nature of law, the argument from law’s claim to moral correctness, and the idea of an objective morality. Finally, he sketches his own position which, in some respects, resembles Alexy’s view, but also differs from it in certain relevant points.

Categories: Journals

Retraction

Ratio Juris - Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 117-117, March 2020.
Categories: Journals

Retraction

Ratio Juris - Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 118-118, March 2020.
Categories: Journals

Preface to a Debate

Ratio Juris - Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 3-5, March 2020.
Categories: Journals

Issue Information

Ratio Juris - Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 1-2, March 2020.
Categories: Journals

Issue Information

Ratio Juris - Fri, 2020-04-24 09:04
Ratio Juris, Volume 33, Issue 1, Page 120-122, March 2020.
Categories: Journals

‘Too Much, too Indigestible, too Fast’? The Decades of Struggle for Abortion Law Reform in Northern Ireland

The Modern Law Review - Thu, 2020-04-23 20:00
Abstract

In July 2019, the UK Parliament voted by an overwhelming majority for fundamental reform of Northern Ireland's archaic abortion laws. Regulations implementing the reform came into effect on 25 March 2020. Drawing on extensive archival resources and a small number of interviews, we locate this extraordinary political moment in a broader historical context. We explore the factors that blocked the possibility of reform in either Westminster or Stormont for over five decades and consider what it was that had changed in 2019 to render it possible. While the measure passed in Westminster represents a radical rupture with the past, we suggest that it was anything other than sudden, rather representing the culmination of decades of sustained campaigning. We conclude by briefly discussing what this change is likely to mean for the future.

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Durie v Gardiner: Public Libel Law and Stare Non Decisis

The Modern Law Review - Wed, 2020-04-22 09:18
Abstract

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory‐doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.

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Border Problems: Mapping the Third Border

The Modern Law Review - Wed, 2020-04-22 09:18
Abstract

The Internet has become the site of economically relevant objects, events and actions, as well as the source of potential risks to the financial systems. This article builds on a metaphor of ‘border problems’ in financial regulation, exploring a ‘third border’ between the ‘real world’ and ‘cyberspace’—a virtual domain of human interaction facilitated and conditioned by digital communications systems. Reviewing the ‘cyber‐sovereignty’ debate and surveying the divergent approaches now emerging along geo‐political faultlines, we argue that sovereign states still have a unique and irreplaceable role in guarding financial stability which must be reflected in the law of Internet jurisdiction: an emerging lex cryptographica financiera. We conclude with a few observations on how this could affect the design of financial regulation in the coming decade.

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Will Gender Self‐Declaration Undermine Women's Rights and Lead to an Increase in Harms?

The Modern Law Review - Wed, 2020-04-22 09:18
Abstract

This article considers and rejects claims that reform of the Gender Recognition Act 2004 (GRA) to allow gender self‐declaration will undermine non‐trans women's rights and lead to an increase in harms to non‐trans women. The article argues that these claims are founded on a mistaken understanding of the proper legal relationship between the GRA and the Equality Act 2010 (EA), and that the harm claim, in any event, lacks a proper evidential basis. The article considers three legal arguments made by gender critical feminists: that sex‐based exceptions under the EA cannot be invoked against trans women with a Gender Recognition Certificate (GRC), that the appropriate legal comparator for a trans woman non GRC‐holder in a discrimination case is a non‐trans man, and that section 22 of the GRA, which protects the privacy of GRC‐holders, undermines the ability of women's organisations to regulate access to women‐only spaces.

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