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The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis 2022 Liberty University

The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis

Helm's School of Government Conference

The paper address the nature of the principles of the Declaration and the Declaration's relationship to the Constitution and how these related to slavery. The argument is that the Declaration did stand for universal equality of the individual before God and the law and therefore its principles condemned slavery. The Constitution did not embrace slavery even though it failed to ban slavery but did set the foundation for the end of slavery.


How To Decide Religious Liberty Cases: An Analysis Of Balancing Versus Principalism, Marc A. Clauson 2022 Cedarville University

How To Decide Religious Liberty Cases: An Analysis Of Balancing Versus Principalism, Marc A. Clauson

Helm's School of Government Conference

No abstract provided.


A Commons In The Master's House, Daniel S. Farbman 2022 Boston College Law School

A Commons In The Master's House, Daniel S. Farbman

Boston College Law School Faculty Papers

Almost everyone who reads these words is an institutional insider in some form. Those of us who aspire toward transformation, liberation, and resistance from our institutional settings are forced to confront Audre Lorde’s striking admonition that “the master’s tools will never dismantle the master’s house.” For some, finding themselves in the master’s house is a spur towards purism—a rejection of institutional power in search of a “pure” remove from which to critique it. For others, it is a dispiriting check on their aspirations and an invitation to sullen fatalism. This Essay questions whether we are ...


Why Aim Law Toward Human Survival, John William Draper 2022 University of Pennsylvania Carey Law School

Why Aim Law Toward Human Survival, John William Draper

Librarian Scholarship at Penn Law

Our legal system is contributing to humanity’s demise by failing to take account of our species’ situation. For example, in some cases law works against life and supports interests such as liberty or profit maximization.

If we do not act, science tells us that humanity bears a significant (and growing) risk of catastrophic failure. The significant risk inherent in the status quo is unacceptable and requires a response. We must act. It is getting hotter. When we decide to act, we need to make the right choice.

There is no better choice. You and all your relatives have rights ...


James Madison And Strict Constructionism, Drew LeMay 2022 Liberty University

James Madison And Strict Constructionism, Drew Lemay

Liberty University Journal of Statesmanship & Public Policy

The United States Constitution has been a battleground between loose and strict constructionism since it was first ratified by the original thirteen colonies. To this day, the debate has continued to rage on across political groups. The question that remains to be answered is which method of interpretation did the Founding Fathers subscribe and intend to be utilized for the following generations. This essay seeks to partially answer that question by analyzing the view of one particular Founder: James Madison, the “Father of the Constitution.”


John Locke's Theory Of Property, And The Dispossession Of Indigenous Peoples In The Settler-Colony, Calum Murray 2022 Seattle University School of Law

John Locke's Theory Of Property, And The Dispossession Of Indigenous Peoples In The Settler-Colony, Calum Murray

American Indian Law Journal

This paper explores how John Locke’s theory of property, elaborated in chapter five of his Second Treatise of Government, provided a compelling conceptual and practical justification for the appropriation of Indigenous peoples’ territories in America by the early English settler-colonists of the 17th century. It examines how his property theory facilitated the nullification of Native American conceptions of land through the superimposition of European private property regimes in the settler colony. It further highlights briefly how indistinguishable dynamics also characterize the contemporary Israeli/Palestinian settler-colonial context, where the reverberations of Locke’s thought on property are pervasive. To ...


How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman 2022 University of Pennsylvania Carey Law School

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

Faculty Scholarship at Penn Law

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties ...


Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor of Constitutional Law 2022 Wayne State University Law School

Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

Robert Cover's metaphor of law as a bridge to an imagined future emphasizes the forward-facing character of law. But this is often obscured by law's backward-looking practice. The pathologies of contemporary judicial methodologies such as textualism distort the meaning and operation of law. Law has a distinctive temporal structure—an ontology—that defines it as a social institution. It knits together past, present, purpose, and projected future into a demand for action. Neglect one element of the complex dynamic and the bridge to an imagined future becomes what Václav Havel describes as “a bridge of excuses.” Law lives ...


Partisan Gerrymandering And The Right To Privacy, Ana Deckey 2022 Claremont Colleges

Partisan Gerrymandering And The Right To Privacy, Ana Deckey

CMC Senior Theses

This paper argues that partisan gerrymanderers violate citizens’ right to privacy by using data containing sensitive information on citizens without a compelling state interest. It first details how partisan gerrymandering claims have been argued in Court in the past. Next, it discusses theories of the right to privacy, mainly exploring the tensions between James Madison’s writings on privacy and Warren and Brandeis’ famed The Right to Privacy. Then, I present originalist arguments for upholding the original meaning and principles of the right to privacy and the Fourth and Fourteenth Amendments before walking through case law related to privacy and ...


Bad Acts, Worse Responses: Reconsidering The Moral Foundations Of The Us Criminal Justice System, Christian N. Futch 2022 Georgia Southern University

Bad Acts, Worse Responses: Reconsidering The Moral Foundations Of The Us Criminal Justice System, Christian N. Futch

Honors College Theses

The purpose of this paper is to evaluate the contemporary criminal justice system in the United States, offering moral and pragmatic critiques to its current construction, and proposing an alternative construction that is both more successful pragmatically and morally. In this paper, I first establish the connection between morality and the law through the consideration of jurisprudential theories of law. After arguing for this connection, I then offer critiques of the current criminal justice system in the United States. After this, I evaluate the four general theories of punishment using the scholarship of Thom Brooks, finding that retributive and deterrent ...


Righting Health Policy: Bioethics, Political Philosophy, And The Normative Justification Of Health Law And Policy, D. Robert MacDougall 2022 CUNY New York City College of Technology

Righting Health Policy: Bioethics, Political Philosophy, And The Normative Justification Of Health Law And Policy, D. Robert Macdougall

Publications and Research

In Righting Health Policy, D. Robert MacDougall argues that bioethics needs but does not have adequate tools for justifying law and policy. Bioethics’ tools are mostly theories about what we owe each other. But justifying laws and policies requires more; at a minimum, it requires tools for explaining the legitimacy of actions intended to control or influence others. It consequently requires political, rather than moral, philosophy. After showing how bioethicists have consistently failed to use tools suitable for achieving their political aims, MacDougall develops an interpretation of Kant’s political philosophy. On this account the legitimacy of health laws does ...


Law And Literature In The Work Of Robert Cover, Tawia Ansah 2022 Touro College Jacob D. Fuchsberg Law Center

Law And Literature In The Work Of Robert Cover, Tawia Ansah

Touro Law Review

This Article argues that although Robert Cover seems to discount the role and the practical efficacy of literary texts within the context of legal interpretation, Cover’s work nevertheless discloses an extensive exploration of literature and of literary interpretation to frame his own legal interpretive practices. This is particularly the case regarding the development of his theory of law’s violence. The Article attempts to show that a close reading of Cover’s interpretation of literary texts in the service of his legal analyses discloses a buried theme pursuant to the violence of law: the threshold concept, between law and ...


How The First Paragraph Of Violence And The Word Killed The Law As Literature Movement, Brett G. Scharffs 2022 Touro College Jacob D. Fuchsberg Law Center

How The First Paragraph Of Violence And The Word Killed The Law As Literature Movement, Brett G. Scharffs

Touro Law Review

No abstract provided.


Bridges Of Law, Ideology, And Commitment, Steven L. Winter 2022 Touro College Jacob D. Fuchsberg Law Center

Bridges Of Law, Ideology, And Commitment, Steven L. Winter

Touro Law Review

Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or ...


Gender Unfreedom: Gender Diverse Perspectives From Digital India, Sara Bardhan 2022 Pandit Deendayal Energy University, India

Gender Unfreedom: Gender Diverse Perspectives From Digital India, Sara Bardhan

Journal of Feminist Scholarship

No abstract provided.


Remembrance, Group Gripes, And Legal Frictions: Rule Of Law Or Awful Lore?, Aviam Soifer 2022 Touro College Jacob D. Fuchsberg Law Center

Remembrance, Group Gripes, And Legal Frictions: Rule Of Law Or Awful Lore?, Aviam Soifer

Touro Law Review

The rise of groups that honor and seek to advance their particular imagined or real pasts has seemed increasingly dangerous in the years since Bob Cover’s death in 1986. This essay briefly examines the challenges such groups pose to Bob’s hope, and even his faith, that law and legal procedure could be bridges to more just worlds. It may not be ours to finish consideration of how to distinguish the Rule of Law from Awful Lore—both composed of exactly the same letters—but we should continue that task, with remembrance, even within our troubled world.


Revisiting A Jurisprudence Of Obligation, Ariel Evan Mayse, Kenneth A. Bamberger 2022 Touro College Jacob D. Fuchsberg Law Center

Revisiting A Jurisprudence Of Obligation, Ariel Evan Mayse, Kenneth A. Bamberger

Touro Law Review

Through his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights. The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls ...


Emotions And Precedent, Emily Kidd White 2022 Osgoode Hall Law School of York University

Emotions And Precedent, Emily Kidd White

All Papers

The philosophy of emotion raises complications for theories of precedent. This chapter argues that it is productive to think of the effect of some precedents as facets of legal reasoning that are related to the use and understanding of legal concepts as thick concepts. In legal reasoning, precedents are routinely invoked to explicate, and/or clarify the content of legal concepts that are at issue in a case. This chapter develops an argument by Bernard Williams, i.e., that one must avoid the risk of over-generalizing the relationship of emotions to thick concepts, by placing it in the context of ...


A Philosophy Of Contract Law For Artificial Intelligence: Shared Intentionality, John Linarelli 2022 Touro Law Center

A Philosophy Of Contract Law For Artificial Intelligence: Shared Intentionality, John Linarelli

Scholarly Works

This is a chapter for the forthcoming book, Contracting and Contract Law in the Age of Artificial Intelligence, edited by Martin Ebers, Cristina Poncibò, and Mimi Zou, to be published by Hart Publishing. The aim of this chapter is to offer a general theory of contract law to account for the inclusion of artificial intelligence in contract practices. Artificial intelligence brings out that what makes contract law a distinctive form of legal obligation is shared intentionality. I refer to this insight as the shared intentionality thesis. Shared intentionality is the psychological capacity of one agent to share and pursue a ...


Authority, Obedience, And Justification, Michelle Madden Dempsey 2021 University of Cincinnati College of Law

Authority, Obedience, And Justification, Michelle Madden Dempsey

University of Cincinnati Law Review

We have a duty to think for ourselves. The law claims authority over us. We have a duty, at least sometimes, to obey the law. Alone, each of these premises is fairly uncontroversial. Combined, they create some intriguing puzzles. Can law’s claim of authority be justified? If so, does justified legal authority entail an obligation to obey the law? If not, are we nonetheless justified, and perhaps even obligated, to act as if such an obligation exists? While this essay is hardly the first to address these questions, it is the first to do so by combining elements of ...


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