Questions tagged [philosophy-of-law]

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204 views

Are Laws crafted around personal/individual beliefs ethical? [closed]

For instance. Gender Identity is defined as what a person believes they are. Gender Roles is defined as what society constitutes as being a specific gender. With the latest boom in Gender Identity ...
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1answer
180 views

What is the relation of natural rights to human rights ? [closed]

Assuming that there are natural rights and human rights, are they co-extensive - so that to have (all) natural rights is to have (all) human rights and vice versa? Is there any difference in their ...
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4answers
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Who was first to say that justice is “to give each his due”?

May I know which Greek or Roman philosopher is the first to define justice as "giving each his due"? And what arguments have he put forward to justify this definition?
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6answers
3k views

What fallacy dismisses criticism of a bad law with “just don't break it”?

Let's say someone is criticizing the government for instituting some draconian policy, and/or for persecuting people for doing something minor. And the response is:"Just don't do it and you'll be fine"...
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2answers
132 views

“Intellectual property” of publications

Intellectual property is a broad and ill-defined notion so I want to be clear what I am talking about. I am not talking about someone taking credit for another's published work, surely authors should ...
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3answers
497 views

What does it mean to be 'unaware that you are unaware that you are unaware'? [closed]

Source: Jeffrey Brand, Philosophy of Law (2013), p. 157 Bottom - 158 Top. Negligence plays a central role in tort law (see Chapter 5, sec. 3), but only a peripheral role in criminal law. There ...
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3answers
674 views

Why would all law be positive law?

Oliver Wendell Holmes, Jr., in his 1897 The Path of Law, argues that law does not relate to objective reality but is created by whatever judges decide. Thus, according to him, all law is positive law, ...
6
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1answer
95 views

What is this System of Right that consistently shows up in Foucault's work?

In his January 7, 1976 lecture, Foucault says: The system of right, the domain of law, are permanent agents of these relations of domination... Right should be viewed not in terms of a legitimacy ...
2
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1answer
155 views

Why is it an Appeal to Pity if a defense attorney evidences misfortune of the defendant?

Source: p 236-237, With Good Reason, An Introduction to Informal Fallacies (2000 6 ed) by York U. Prof. S. Morris Engel   The trouble with such appeals [to Pity] is that, however are, they may ...
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1answer
93 views

What is erroneous about attacking someone's trying to understand how to live life?

Original Source: Michael E. Tigar BA JD (Univ. of California, Berkeley), “Defending,” Texas Law Review 74 (1995). Source: p 196, How Can You Represent Those People? (2013) by Abbe Smith, Monroe ...
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0answers
24 views

Can I use “nomothetic” to refer to the calculus correctness perspective in the Tractatus?

I'm doing a comparison between the Tractatus Logico Philosophicus and the Philosophical Investications. I want to remark the difference between the solid formal edifice built in the former, in ...
6
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2answers
279 views

How can opposing policies under the Particular-Universal Dualism still function well together?

Source: pp 167-168, Thinking Like a Lawyer: An Introduction to Legal Reasoning (2010, 2 ed) by Kenneth J. Vandevelde. Can someone please explain and demystify (make more intuitive) the paradox per 4?...
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31 views

Is it 'simply implausible' that minute regulations are rooted in God’s will or the nature of the universe?

Source: p 154, Thinking Like a Lawyer: An Introduction to Legal Reasoning (2010, 2 ed) by Kenneth J. Vandevelde   Third, much law in the modern world governs mundane, trivial matters that could ...
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2answers
171 views

Which branches of philosophy matter most to law?

This question presumes that after reading short introductions, the best next step is to read introductory textbooks from each branch of philosophy. Feel free to challenge this presumption. Then ...
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2answers
274 views

Is my interpretation of Objectivism in relation to environmental preservation correct? [closed]

Objectivism states, among the ethical aspects of its philosophy, that no human has the right to physically harm another in even the tiniest portion, except as just punishment. Environmental ...
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0answers
85 views

What is a strong argument that shows social rules exist? [closed]

Aside from an appeal to common sense, what are the strongest contemporary arguments for the existence of social rules? By social rules, I mean social rules in the tradition of Durkheim, Weber, Hart, ...
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2answers
302 views

How does one justify “to deserve” when punishing or sentencing?

The idea of issuing punishment for justice, because the agent of some crime "deserves" it has always bothered me. How does one justify what one deserves? Obviously this is a subjective value ...
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2answers
143 views

First books about philosophy of law, for a novice with no exposure?

I define exiguous to mean the shortest and easiest introductions (< 300 pages) of philosophy. This question premises a reader with zero exposure to philosophy of law. Please correct me if I erred ...
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3answers
98 views

Does criminal law have different rules for “evidence” than general science?

It looks to me like (at least here in USA) the court of law does not always require empirical evidence to sentence someone to death. Rather it seems that the person can be sentenced as long as there ...
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4answers
1k views

Can any consensual activity be wrong?

What are the philosophical arguments / frameworks that view at least seemingly consensual activities (e.g incest, killing (assisted suicide or dueling), mutilation, gay sex ) involving one or more ...
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6answers
691 views

Is there a demarcation problem for religions?

So far, all of the philosophy of religion I have read focuses on the questions of God's existence and on the problem of evil. It seems to me that just as important would be the question of what a ...
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3answers
250 views

Capital punishment and morality

I'm surprised this never came up. For me, capital punishment may or may not have its place, but if it does then it acts to absolve the punished individual of their guilt. Sometimes this is preferable ...
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1answer
222 views

Laws are made for humans, but does everyone classify as a human? [closed]

By law, even the worst criminals may be pardoned on grounds of mercy etc. But if an animal attacks or even kills a human, it can be put down. My question is: Shouldn't there be 'rules' to determine ...
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1answer
66 views

How would binding soldiers to war against their will, mock a legal system?

Source: Unjust War ..., by PAUL CHRISTOPHER, from Parameters Autumn 1995, pp 4-8. Moreover, it is profoundly arrogant for officers to take the view, as some do, that after the national debate ...
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4answers
426 views

What can be plausible justification for the judges' subjectivity in interpreting some laws? (More questions below)

The Judiciary generally holds the power to interpret the law based on the legislative intent. However, some of their judgments may be counter-intuitive, if not contrary to the clear and unmistakable ...
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3answers
542 views

How would Kant decide whether a law is ethical?

From what I understand, I know that Kant believes that the purpose of government is to "[hinder] a hindrance to freedom" that people could impose on others. Additionally, in a Kantian government ...
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1answer
280 views

German philosophers on (french) revolution

I'm reading an essay written by the Italian philosopher Remo Bodei, where he examines the thoughts of some German philosopher on the french revolution and revolutions in general. According to him, ...
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1answer
768 views

What's the difference between true statements and real information? [closed]

In Sweden we have legislation about "Osant intygande" - "Untrue verification" e.g. false and fabricated Ph D diploma or similar "Oriktig uppgift" - "Not a real piece of information" e.g. registrering ...
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4answers
487 views

How to dissect or parse an 'if' nested within another 'if'?

Source: p 153, Letters to a Law Student, 1 ed (2006), by McBride Section 2 of the Theft Act 1968 (title: “ ‘Dishonestly’ ”) provides that: (1) A person’s appropriation of property ...
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2answers
329 views

Is the age of Tristan Kurilla (10 year old charged with homicide) relevant to his trial

One of the top news stories today is that of Tristan Kurilla, a fifth-grader from Pennsylvania, who is being charged with criminal homicide after beating a woman to death. Kurilla is currently being ...
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2answers
151 views

Philosophical terms for the different kinds of acceptance of a rule

I'm trying to write a philosophy essay and I'm trying to distinguish between three different ways in which agents may accept or believe in a rule: That a rational agent seeking the best outcome (for ...
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2answers
240 views

What kinds of philosophy are described by these questions? How to self-learn them?

Is there a formal branch or name for the kind(s) of philosophy needed to answer questions like the following ? If so, how can I self-learn it? I stress that no legal knowledge is required. The ...
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1answer
375 views

How to self-learn legal arguments, logic, and reasoning?

What are some readable, eloquent (without legalese) books on arguments, fallacies, logic, and reasoning, as applied and used in law? This question is aimed towards a greenhorn/tenderfoot with ...
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6answers
2k views

If a lawyer that is representing a defendant finds that his client is guilty, how is he supposed to act?

If a lawyer that is representing a defendant finds that his client is guilty, how is he supposed to act? Can a lawyer lie or pretend he doesn't know something? Should or could he, morally, try to win ...
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1answer
331 views

Law and The Formula of Humanity

There seems to be a clear notion of "taking into consideration" the humanity of others in the Formula of Humanity. "Every rational being exists as an end in himself, not merely as a means for ...
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3answers
3k views

Should governments have the power to limit the citizen's rights during wartime?

Should the government be allowed to limit their citizens rights during wartime or other hard times that the country is going through? What if it was an apocalyptic event that everyone knew they would ...
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2answers
73 views

Is State liable is a violent crime is committed because of the State laws?

US Supreme Court made numerous rulings that police does not have a duty to protect individuals. This effectively leaves nobody US residents to rely on for protection except themselves. However, ...
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7answers
1k views

If one is presumed innocent until proven guilty beyond any reasonable doubt, why wrongful convictions are so common?

Is it because we don't get the actual meaning of "proven" so we implement the concept in a faulty way ? Is it because "reasonable" varies too much from person to person ? Is it because the ...
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4answers
181 views

Viewpoints of how the law should apply to authorities

When it comes to the question as to what extent authorities in a state should be bound by the laws of the state (which they often make themselves), there seem to be two main viewpoints, one of them ...
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0answers
1k views

Is Webers definition of a nation state applicable in other contexts?

Max Weber, in his essay politics as a vocation defined the nation state as that which can 'successfully uphold a claim on the monopoly of the legitimate use of physical force within a specific ...
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3answers
27k views

What's the difference between a 'duty' and 'obligation'?

Background I enrolled in a class, The Philosophy of Human Rights. The authors of the course readings never use 'duty' and 'obligation' interchangeably, so I suspect that the terms may have distinct ...
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5answers
1k views

A Marxist Theory of Justice?

I am stuck in a vast amount of papers concerning Marx's view of justice, written in the 70s, 80s and 90s, disputing and contradicting each other. With my current knowledge of Marx, it is sometimes ...
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5answers
598 views

Is it possible to define (legally-useful) inalienable natural rights without a deity?

Here's my understanding of natural rights: Natural rights are those rights inherent to a being. Those rights are inalienable if they may not be overridden by social contract. Without some sort of ...
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2answers
120 views

Must a self-legislating citizenry guarantee itself freedom of speech?

Specifically I want to know whether a constitution that is authored by its own citizens must contain a guarantee of free expression. And why? The intent is to retain the capacity of self-legislation ...
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1answer
93 views

How do philosophers distinguish between rights that beg legislation vs. those that not?

I have over the years seen podcasts or iTunes lectures from Michael Sandel's justice lectures at Harvard. He asks many profound questions. The problem I have is that most of them seem to be based ...
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1answer
179 views

Are there two fundamental views of rights?

I once saw a cartoon / infographic that attempted to explain the differences between liberals and conservatives. It had plenty of details that were subjective questions or might be said to be due to ...
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4answers
331 views

Can one ask for more than they deserve?

I would appreciate if answers can cite the individuals or religious-paradigm that derive the answer. The concept of being 'deserving' suggested an availability, if not a right, to something. '...
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7answers
5k views

Should attempted murder be a lesser crime than murder?

It is often the case that a person convicted of attempted murder receives a lesser punishment than if they had been successful in committing the crime. As far as I am aware, there are four main ...
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1answer
117 views

Collecting any formalisations of morality

I'm collecting formalizations of "morality" of any philosophical school. (My special wishes is anything for Kant, which I don't understand and for whom I didn't find anything seriously formal, at ...
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1answer
747 views

Is Nozick's Criticism of Rawls correct?

When Nozick says distributive justice 'marks a shift from the classical liberal notion of self ownership to a notion of property rights in others', is this a fair criticism of Rawls and distributive ...