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Full-Text Articles in Jurisprudence

Legal Personhood For Artificial Intelligence, Tyler Jaynes Jun 2019

Legal Personhood For Artificial Intelligence, Tyler Jaynes

Tyler Jaynes

The concept of artificial intelligence is not new nor is the notion that it should be granted legal protections given its influence on human activity. What is new, on a relative scale, is the notion that artificial intelligence can possess citizenship—a concept reserved only for humans, as it presupposes the idea of possessing civil duties and protections. Where there are several decades’ worth of writing on the concept of the legal status of computational artificial artefacts in the USA and elsewhere, it is surprising that law makers internationally have come to a standstill to protect our silicon brainchildren. In ...


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jun 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Michael Evan Gold

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Autonomy, Gideon Parchomovsky, Alex Stein May 2019

Autonomy, Gideon Parchomovsky, Alex Stein

Faculty Scholarship at Penn Law

Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or ...


Wisdom (Hikmah) As Perceived By Iranian Muslim Scholars: Reflections On Ibn Sina, Ghazali, And Suhrawardi, Leyla H. Tajer, Amir H. Zekrgoo Apr 2019

Wisdom (Hikmah) As Perceived By Iranian Muslim Scholars: Reflections On Ibn Sina, Ghazali, And Suhrawardi, Leyla H. Tajer, Amir H. Zekrgoo

Journal of Islamic and Middle Eastern Multidisciplinary Studies

The evolution of the concept of spiritual/religious wisdom (ḥikamt) by the Iranian Muslim philosophers from the 10th to 12th century, may be studied under three main trends namely Mashā’i (Peripatetic), Kalām (theology), and Ishrāq (Illumination). Despite the correlation among these trends each of them grew independently. Among the three, the Hikmat-i Ishrāq (Illumination Wisdom) which is also known as Ḥikamt-i Dhawqi (Intuitive Wisdom) of Shahab al-Din Suhrawardi (1153-1191) found a special place as it tended to bring together the philosophical and theological aspects of wisdom. This survey would address the development of ikmat (wisdom) among ...


A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jan 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Articles and Chapters

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley Jan 2019

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and ...


Judging Well, Francis J. Mootz Iii Jan 2019

Judging Well, Francis J. Mootz Iii

Washington University Jurisprudence Review

Can judges interpret the law in a manner that is objectively verifiable, or do judges necessarily – even if unconsciously – inject their own predispositions and biases into their decisions? It is difficult to decide whether such a question is frivolous in the post-Realist age, or whether it is the is the single most important question that we can ask about our legal system. I endorse both responses. The question, as phrased, is both vitally important and unanswerable on its own terms. Rather than seeking an elusive objective standard by which to measure the correctness of “a judgment,” I argue that we ...


Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank Jan 2019

Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank

Faculty Scholarship at Penn Law

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as ...


Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters Jan 2019

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

Faculty Scholarship at Penn Law

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in ...


The Politics Of Wounds, Jonathan Nash Aug 2018

The Politics Of Wounds, Jonathan Nash

Electronic Thesis and Dissertation Repository

What configuration of strategies and discourses enable the white male and settler body politic to render itself as simultaneously wounded and invulnerable? I contextualize this question by reading the discursive continuities between Euro-America’s War on Terror post-9/11 and Algeria’s War for Independence. By interrogating political-philosophical responses to September 11, 2001 beside American rhetoric of a wounded nation, I argue that white nationalism, as a mode of settler colonialism, appropriates the discourses of political wounding to imagine and legitimize a narrative of white hurt and white victimhood; in effect, reproducing and hardening the borders of the nation-state. Additionally ...


The Just Response To Crime: To Harm Or To Heal?, Matthew M. Silberstein Apr 2018

The Just Response To Crime: To Harm Or To Heal?, Matthew M. Silberstein

Philosophy Department Student Scholarship

In the realm of criminal justice, Western society has primarily relied on retributive justice system. A retributive system uses punishment as the standard response to crime. In recent years, some have formulated a different criminal justice system, that of restorative justice. Rather than punishment, restorative justice proponents argue that justice is achieved in the aftermath of crime by healing the trauma incurred by crime. The aim of this project is to articulate the value of restorative justice and evaluate its prospects.


Levels Of Abstraction In Legal Thinking, Michael Evan Gold Jan 2018

Levels Of Abstraction In Legal Thinking, Michael Evan Gold

Articles and Chapters

[Excerpt] This article applies the concept of levels of abstraction to legal thinking. Perhaps the most important use of the concept is to constrain judicial lawmaking in a principled way.

Level of abstraction refers to:

  • the numbers of persons and transactions that generate an issue,

  • the numbers of persons and transactions of which a piece of evidence is true,

  • the numbers of persons and transactions to which an argument applies, and

  • the numbers of persons and transactions that are affected by the resolution of an issue.

In general, the more persons and transactions to which an issue and its resolution ...


The Free Exercise Clause, Minority Faiths, And The Possibility Of Religious Independence After Rawlsian Liberalism, David Charles Scott Jan 2018

The Free Exercise Clause, Minority Faiths, And The Possibility Of Religious Independence After Rawlsian Liberalism, David Charles Scott

Theses and Dissertations--Philosophy

The conversation to which my dissertation belongs is that which preoccupied John Rawls in Political Liberalism, namely: (1) how it is possible that a religiously and morally pluralistic culture like ours lives cooperatively from one generation to the next, and (2) The extent to which religious or moral convictions are appropriate bases for political action. My three-essay dissertation is about aspects of this investigation that affect minority or non-mainstream religious and cultural groups, since legal institutions, and theoretical models of them (such as Rawls’s and Ronald Dworkin’s) are in many ways ill-suited to accommodate their ways of life ...


Arguing With Friends, William Baude, Ryan D. Doerfler Jan 2018

Arguing With Friends, William Baude, Ryan D. Doerfler

Faculty Scholarship at Penn Law

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or ...


Our Principled Constitution, Mitchell N. Berman Jan 2018

Our Principled Constitution, Mitchell N. Berman

Faculty Scholarship at Penn Law

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a ...


Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making?  One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines.  Though plausible today, this argument will wear thin as technology evolves.

Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making.  Specifically, we propose an account of democratic equality as ‘role-reversibility.’  In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ...


A Kantian System Of Constitutional Justice: Rights, Trusteeship, Balancing, Alec Stone Sweet Oct 2017

A Kantian System Of Constitutional Justice: Rights, Trusteeship, Balancing, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.


Of Law And Other Artificial Normative Systems, Mitchell N. Berman Sep 2017

Of Law And Other Artificial Normative Systems, Mitchell N. Berman

Faculty Scholarship at Penn Law

Different theories of law are situated within different pictures of our normative landscape. This essay aims to make more visible and attractive one picture that reflects basic positivist sensibilities yet is oddly marginalized in the current jurisprudential literature. The picture that I have in mind tries to vindicate surface appearances. It maintains that the social world is densely populated by countless normative systems of human construction (“artificial normative systems”) whose core functions are to generate and maintain norms (oughts, obligations, powers, rights, prohibitions, and the like). The norms that these systems output are conceptually independent from each other, and may ...


For Legal Principles, Mitchell N. Berman Jun 2017

For Legal Principles, Mitchell N. Berman

Faculty Scholarship at Penn Law

Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.

In ...


High-Stakes Interpretation, Ryan D. Doerfler Mar 2017

High-Stakes Interpretation, Ryan D. Doerfler

Faculty Scholarship at Penn Law

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to ...


The Tragedy Of Justice Scalia, Mitchell N. Berman Jan 2017

The Tragedy Of Justice Scalia, Mitchell N. Berman

Faculty Scholarship at Penn Law

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia ...


Law Without Absolutes: Toward A Pragmatic Science Of Law, Jd Hsin Jan 2017

Law Without Absolutes: Toward A Pragmatic Science Of Law, Jd Hsin

Washington University Jurisprudence Review

Although today the very idea of a science of law—the thought that law could be made a science like any other taught and studied at a modern university—has the ring of an oxymoron, this piece argues that the rejection of legal science was not only overhasty but unnecessary. There is a sense in which we can see law as a science, it argues, but only once we come to see more clearly and accurately just why the tradition of legal science begun in the earliest days of the Western legal tradition and brought to America by Christopher Columbus ...


The Return Of The Self, Or Whatever Happened To Postmodern Jurisprudence, Stephen M. Feldman Jan 2017

The Return Of The Self, Or Whatever Happened To Postmodern Jurisprudence, Stephen M. Feldman

Washington University Jurisprudence Review

Postmodern jurisprudence was all the rage in the 1990s. Two of the most renowned postmodernists, Stanley Fish and Pierre Schlag, both persistently criticized mainstream legal scholars for believing they were modernist selves—independent, sovereign, and autonomous agents who could remake the social and legal world merely by writing a law review article. Then Fish and Schlag turned on each other. Each attacked the other for making the same mistake: harboring a modernist self. I revisit this skirmish for two reasons. First, it helps explain the current moribund state of postmodern jurisprudence. If two of the leading postmodernists could not avoid ...


Confucian Jurisprudence, Dworkin, And Hard Cases, Norman P. Ho Jan 2017

Confucian Jurisprudence, Dworkin, And Hard Cases, Norman P. Ho

Washington University Jurisprudence Review

This Article argues that Confucian jurisprudence can accurately be analogized to Dworkin’s adjudicative theory of law, in particular, his interpretive theory of law. To more effectively reveal the methods of Confucian jurisprudence and therefore carry out a comparison with Dworkin’s interpretive theory of law, this article adopts Dworkin’s methodology of focusing on “hard cases.” Specifically, this article identifies and then examines an actual hard case (from Tang dynasty China) which is arguably representative of Confucian jurisprudence in action – the controversial case of Xu Yuanqing, who committed a revenge killing against a low-ranking official who had killed his ...


Wittgenstein’S Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum Jan 2017

Wittgenstein’S Poker: Contested Constitutionalism And The Limits Of Public Meaning Originalism, Ian C. Bartrum

Washington University Jurisprudence Review

Constitutional originalism is much in the news as our new President fills the Supreme Court vacancy Antonin Scalia’s death has created. “Public meaning” originalism is probably the most influential version of originalism in current theoretical circles. This essay argues that, while these “New Originalists” have thoughtfully escaped some of the debilitating criticisms leveled against their predecessors, the result is a profoundly impoverished interpretive methodology that has little to offer most modern constitutional controversies. In particular, the fact that our constitutional practices are contested—that is, we often do not seek semantic or legal agreement—makes particular linguistic indeterminacies highly ...


The Moroccan Jurist Al-Khamlīshī: Can A Woman Become A Legislator (Mujtahid)?, Nayel A. Badareen Nov 2016

The Moroccan Jurist Al-Khamlīshī: Can A Woman Become A Legislator (Mujtahid)?, Nayel A. Badareen

Journal of Islamic and Middle Eastern Multidisciplinary Studies

The idea of deducing legal rulings in Islamic law, or ijtihād, as well as the qualifications of the person who practices ijtihād, known as the mujtahid, has been a complex issue among Muslim ʿulamāʾ for centuries. Many Muslim ʿulamāʾ and Western scholars have maintained that the gate of ijtihād was closed. The title of mujtahid was therefore impossible to attain. The Moroccan intellectual al-Khamlīshī maintains that the strenuous conditions put forth by some of the Sunni jurists to qualify an individual to become a mujtahid actually contributed to the demise of ijtihād. These qualifications, according to al-Khamlīshī, were proven to ...


Solipsism And Criminal Liability, Ira P. Robbins Nov 2016

Solipsism And Criminal Liability, Ira P. Robbins

Ira P. Robbins

No abstract provided.


Legislative Art As Policy And Pedagogy, Albert Stabler Oct 2016

Legislative Art As Policy And Pedagogy, Albert Stabler

Marilyn Zurmuehlen Working Papers in Art Education

The primary medium for artist Laurie Jo Reynolds is that of political lobbying. She refers to her practice as “legislative art,” adapting the term “legislative theater,” a technique for grassroots lawmaking developed and coined by Brazilian director and playwright Augusto Boal, who both founded the Theater of the Oppressed and served as a member of the Rio city government from 1993 to 1997. By linking the discourses of art and law, Reynolds’ practice can be understood as a form of education, highlighting the restrictions required for creativity, and the possibilities afforded by structure. In my essay I bring together European ...


Jurisprudence Between Science And The Humanities, Dan Priel Jul 2016

Jurisprudence Between Science And The Humanities, Dan Priel

Dan Priel

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this Article I examine the place of science in relation to legal positivism. I argue that, historically, legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science: they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I then argue that since around 1960 jurisprudence, and legal positivism in particular, has undergone ...


The Prospects For Change: The Question Of Justice In A Law & Society Framework, Michael W. Raphael Jun 2016

The Prospects For Change: The Question Of Justice In A Law & Society Framework, Michael W. Raphael

Graduate Student Publications and Research

What is the law and society framework and where has it gotten us? A student in a classroom might raise their hand and offer "understanding legal pluralism" as a possible answer. However, the conceptual problem with legal pluralism is the coexistence of potentially conflicting bases of justification. Given this, desiring to understand how the law shapes the structural underpinnings of whichever "legal" phenomena and its "ongoing transformation", is nevertheless an immense achievement that stops short of its underlying goal – the achievement of human dignity through human rights. For example, to talk about 'multi-stakeholder consultations' and other pithy phrases that describe ...