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Articles 31 - 35 of 35
Full-Text Articles in Law
A Bad Trip For Health-Related Human Rights: Implications Of Momcilovic V The Queen (2011) 85 Aljr 957, Tim Vines, Thomas A. Faunce
A Bad Trip For Health-Related Human Rights: Implications Of Momcilovic V The Queen (2011) 85 Aljr 957, Tim Vines, Thomas A. Faunce
Thomas A Faunce
Momcilovic v The Queen (2011) 85 ALJR 957 [PDF] ; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) . The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or …
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
Alex Stein
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …
A Swindle With Big Words And Virtues?: Leiter On Dworkin And "Nonsense Jurisprudence", Timothy J. Stostad
A Swindle With Big Words And Virtues?: Leiter On Dworkin And "Nonsense Jurisprudence", Timothy J. Stostad
Timothy J. Stostad
In a recent essay, Professor Brian Leiter argues that the jurisprudence of Professor Ronald Dworkin, which Leiter calls “Moralist” jurisprudence, is neither “relevant [nor] illuminating when it comes to law and adjudication.” Exponents of such jurisprudence, Leiter argues, credulously attend to the articulated doctrinal rationales offered by judges as grounds for their decisions. “Realists,” by contrast, recognize that certain nonlegal factors better predict patterns of judicial decision making than do doctrinal rationales. According to Leiter, it follows from the fact that nonlegal factors predict and presumably influence judicial decisions, that attention to judges’ stated rationales is largely a mistake. Here, …
My “Country” Lies Over The Ocean: Seasteading And Polycentric Law, Allen P. Mendenhall
My “Country” Lies Over The Ocean: Seasteading And Polycentric Law, Allen P. Mendenhall
Allen Mendenhall
This essay considers the implications of the Seasteading Institute upon notions of law and sovereignty and argues that seasteading could make possible the implementation or ordering of polycentric legal systems while providing evidence for the viability of private-property anarchism or anarchocapitalism, at least in their nascent forms. This essay follows in the wake of Edward P. Stringham’s edition Anarchy and the Law and treats seasteading and polycentric law as concrete realities that lend credence to certain anarchist theories. Polycentric law in particular allows for institutional diversity that enables a multiplicity of rules to coexist and even compete in the open …
What Piece Of Work Is Man: Frans De Waal And Pragmatist Naturalism, Wouter H. De Been, Sanne Taekema
What Piece Of Work Is Man: Frans De Waal And Pragmatist Naturalism, Wouter H. De Been, Sanne Taekema
Wouter H. de Been
Frans de Waal has questioned a central premise of liberal theory, i.e. that human beings are primarily defined by selfishness and rationality. This premise does not conform to what we know from research about our primate origins - namely that primates are gregarious and guided by sympathy and empathy. De Waal argues we should return to Adam Smith’s moral theory and his focus on sympathy and empathy. We believe a return to pragmatism would be more appropriate. Pragmatism largely conforms to the view of human nature that De Waal’s research now supports. We argue that pragmatism can provide a more …