Journal articles: 'History and philosophy of law and justice'

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Papke, David Ray, and Wai Chee Dimock. "Residues of Justice: Literature, Law, Philosophy." American Historical Review 102, no. 4 (October 1997): 1118. http://dx.doi.org/10.2307/2170635.

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Vinogradov, Andrey I., Maiia E. Pankratova, Anatoly N. Yashin, Natalya Yu Rasheva, Anton V. Emelyanov, and Oksana P. Chernykh. "Justice: between law and Conscience." Cuestiones Políticas 39, no. 70 (October 10, 2021): 105–18. http://dx.doi.org/10.46398/cuestpol.3970.06.

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From the philosophical perspective article deals with the correlation between law and consciousness. To address the issue, ideas from renowned thinkers are used. It specifically describes the experience of addressing the subject in Russian philosophy from the late nineteenth to the early twentieth century. The article shows the reasons for preferring law or consciousness in different periods of history and demonstrates the rational nature of law and the irrational nature of consciousness, indicating that law and consciousness are not mutually exclusive. It concludes with an attempt to combine the two concepts in activities of people who must enforce legal norms. Using the experience of Russian philosophy, which regards the law as a moral minimum, people are advised to govern their actions not only by legal rules, but by listening to the voice of their conscience. The authors suggest understanding conscience as a spiritual and moral human law that makes it possible to make decisions without being forced or motivated from the outside, governed by the internal realization of good and evil and identifying the veracity, justice, and rectitude of an act.

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Tomasiewicz, Marcin. "The Idea of Justice in Historiosophy of Antiquity." Gubernaculum et Administratio 2(24) (2021): 357–71. http://dx.doi.org/10.16926/gea.2021.02.37.

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The article asks a question about the influence of historiosophy on how the notion of justice is understood in Greek and Roman philosophy of law. Historiosophy, named also the philosophy of history, has been defined as an effort to explain general history in categories of sense and aim by proving that there is a general rule leading the historical process. In the course of the discussion there are two such historiosophical rules presented. Chronologically, the first of them is Homeric Moirai, which throughout the development of the Greek philosophy has been replaced by a notion of providence. Moirai was the rule of destiny controlling destinies of both men and gods. In this approach, justice was understood as a certain “share” or “allocation”, seen as a role given to each person who needed to play it in history. The same content element was included in the notion of providence. In the philosophy of stoics providence was the ordering force that created nature and at the same time constituted an indirect source of justice and law.

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Conrad, Stephen A., and Michael H. Hoffheimer. "Justice Holmes and the Natural Law." Journal of American History 80, no. 4 (March 1994): 1484. http://dx.doi.org/10.2307/2080677.

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Hall, Kermit L., and David L. Bazelon. "Questioning Authority: Justice and Criminal Law." Journal of American History 75, no. 3 (December 1988): 1014. http://dx.doi.org/10.2307/1901706.

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Lockwood, Thornton. "Ethical Justice and Political Justice." Phronesis 51, no. 1 (2006): 29–48. http://dx.doi.org/10.1163/156852806775435143.

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AbstractThe purpose of Aristotle's discussion of political justice (τò πoλιτικòν δικαιoν) in EN V.6-7 has been a matter of dispute. Although the notion of political justice which Aristotle seeks to elucidate is relatively clear, namely the notion of justice which obtains between free and equal citizens living within a community aiming at self-sufficiency under the rule of law, confusion arises when one asks how political justice relates to the other kinds of justice examined in EN V. Is political justice a highly determinate subdivision of justice which Aristotle examines alongside the other varieties of particular justice analyzed in EN V.2-5? Or is political justice related to the analysis of ethical agency which follows in EN V.8-11? The question is complicated by the fact that the passage in question – EN V 1134a17-1135a15 – has occasioned much speculation about textual dislocations and has been incorporated into chapter divisions differently according to the two prevalent modern editorial divisions of the Ethics.To resolve these problems, I argue that Aristotle's account of political justice is situated within an extended aporetic analysis which begins in EN V.6 and extends through EN V.8. Aristotle introduces the notion of political justice within the extended analysis concerning the ascription of character states because calling someone just or unjust presupposes that the person is a fully mature ethical agent, but anyone capable of political justice possesses such agency. Once the extended argument in the second half of EN V is properly understood, it appears that the received text is not in need of emendation. To further support my claim that Aristotle's account of political justice introduces a new inquiry which is not analogous to the analyses of particular justice in the first half of EN V, I compare political justice to the other species of justice.

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Hovenkamp, Herbert, David J. Armor, and Davison M. Douglas. "Forced Justice: School Desegregation and the Law." Journal of American History 82, no. 4 (March 1996): 1643. http://dx.doi.org/10.2307/2945432.

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Mittelman, Amy H. "Bourbon Justice: How Whiskey Law Shaped America." Journal of American History 106, no. 3 (December 1, 2019): 778–79. http://dx.doi.org/10.1093/jahist/jaz589.

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Ellis, Richard E., and Mat Von Brauchitsch. "Equal Justice Under Law: The Marshall Years." Journal of American History 75, no. 3 (December 1988): 1042. http://dx.doi.org/10.2307/1901737.

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Henderson, Jane, and Marina Lomovtseva. "Constitutional Justice in Russia." Review of Central and East European Law 34, no. 1 (2009): 37–69. http://dx.doi.org/10.1163/157303509x406223.

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AbstractThe 1993 Russian Constitution and 1994 Federal Constitutional Law “On the Constitutional Court of the Russian Federation” define the jurisdiction and activity of the Federal Constitutional Court of the Russian Federation. However, these pieces of legislation do not comprehensively address all the issues, and there has been some broadening of the Court's power through interpretation and the effect of some other legislation. This article examines the Court's jurisdiction and some of the issues that arise in the exercise thereof, as well as the relative role of the constitutional or charter courts of the subjects of the Federation, and the relationship between the Constitutional Court and the other courts in the Russian federal system. Issues of the methods of constitutional interpretation are addressed. The importance of the Constitutional Court as the federal agency of constitutional court supervision (review) in ensuring the effective application of the Russian Constitution is highlighted in the context of this growth of a comparatively new branch of law in the Russian legal system.

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Roberts, F. David, and Carolyn A. Conley. "The Unwritten Law: Criminal Justice in Victorian Kent." Journal of Interdisciplinary History 23, no. 4 (1993): 780. http://dx.doi.org/10.2307/206298.

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Karlin, Louis W., and Jordan D. Teti. "A trace of equity in Utopia? On Raphael's reformulation of classical equity." Moreana 54 (Number 207), no. 1 (June 2017): 19–35. http://dx.doi.org/10.3366/more.2017.0004.

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“Equity,” a fertile concept for understanding justice in More's time, has its origins in Greek and Roman philosophy. As the putative emissary of Greek (and Ciceronian) philosophy in More's Utopia, it is thus fitting that Raphael Hythloday expressly acknowledges classical sources in his references to equity, such as in his allusion to the “leaden rule” of Aristotle and his paraphrase of Cicero's famous epigram, “summum ius, summa iniuria.” In substance, however, Raphael's understanding of equity differs from that of Plato, Aristotle, and Cicero. For example, while classical thinkers sought flexibility in the application of written law so as to accord with a higher justice (as in the “leaden rule”), Raphael rejects such impure flexibility. Also, Utopia, itself, a land with few laws and fewer lawyers, lacks equity as it was traditionally understood—that is, as a justice-facilitating corrective to the imprecision of written law. Nevertheless, Raphael emotionally concludes Book Two by apparently praising the “fairness” (aequitas) of Utopia. Despite his appeals to equity, Raphael actually appears to be an inequitable man in the action of the dialogue, with his brash monologues, tendentious citations of the Gospel, and dubious references to equity, itself. By contrast, Cardinal Morton and Morus embody the traits of the “equitable man,” a figure with a key role in promoting justice in Aristotle's Ethics and Rhetoric and in bringing about the best regime in Plato's Laws and Republic. This irony in Utopia helps readers appreciate the fruits and risks of incorporating philosophy into politics, especially as it relates to clamoring for reform. We see the important distinction between impassioned partisans of philosophy (such as Raphael) and the enlightened gentleness of men like Morton and Morus.

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Komarov, Vyacheslav V., and Tetiana A. Tsuvina. "International standard of access to justice and subject of civil procedural law." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 3 (September 17, 2021): 197–208. http://dx.doi.org/10.37635/jnalsu.28(3).2021.197-208.

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The current state of development of national systems of civil justice is described by the growing influence of the ideas of accessibility and efficiency of justice in civil cases and requires the harmonization of national systems with international standards of fair trial. This necessitates a rethinking of some classical provisions of the doctrine of civil procedural law to comply with modern realities. The aim of the article is to study the evolution and approaches to the modern interpretation of the international standard of access to justice in civil cases, as well as its impact on the doctrine of the subject of civil procedural law at the doctrinal level. The article is based on dialectical, histo rical-legal, system-structural, logical-legal, comparative-legal research methods, as well as methods of analysis and synthesis, autonomous and evolutionary interpretation of the European Convention on Human Rights (ECHR). The authors advocate a broad approach to the concept of access to justice, including access to justice, access to effective remedies and access to alternative dispute resolution. Through the prism of the international standard of access to justice, the ideas of procedural centralism, based on the idea of judicial protection as the main and most effective form of protection of violated rights, and procedural pluralism, based on the provision of multiple forms of protection, the effectiveness of which is determined by the circumstances of a particular dispute. The authors substantiate the conclusion about the expediency of the perception of the idea of procedural pluralism at the level of the national legal order. A parallel is drawn between the ideas of procedural centralism and pluralism that have developed in foreign literature, and the narrow and broad concept of the subject of civil procedural law, formed in the domestic doctrine. Taking into account the autonomous interpretation of the concept of “court”, enshrined in paragraph 1 of Art. 6 of the ECHR, as well as the increasing popularization of alternative dispute resolution, provide arguments in support of a broad concept of the subject of civil procedural law, including civil litigation and alternative dispute resolution, in particular, arbitration, international commercial arbitration, mediation, etc.

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Heepe, Moritz. "Römische Strafgerechtigkeit." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 136, no. 1 (June 26, 2019): 271–95. http://dx.doi.org/10.1515/zrgr-2019-0010.

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Abstract Roman Criminal Justice. Legal-philosophical Traces in Aulus Gellius' "Noctes Atticae". The study reviews discussions of just punishment in Aulus Gellius' „Noctes Atticae". It embeds them in contemporary legal discussions based mainly on Cicero's and Seneca's works. The resulting picture of the Roman philosophy of criminal law stands in striking contrast to the historical prejudice of the sheer technicality and philosophical infertility of Roman legal culture. The analysed and partially highly sophisticated arguments belong nevertheless especially to the applied part of legal philosophy.

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Pember, Don R., and G. Edward White. "Justice Oliver Wendell Holmes: Law and the Inner Self." Journal of American History 81, no. 4 (March 1995): 1760. http://dx.doi.org/10.2307/2081769.

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Waller, Spencer Weber, and G. Edward White. "Justice Oliver Wendell Holmes: Law and the Inner Self." Journal of Interdisciplinary History 26, no. 3 (1996): 536. http://dx.doi.org/10.2307/206077.

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Parchomovsky, Gideon. "Fair Use, Efficiency, and Corrective Justice." Legal Theory 3, no. 4 (December 1997): 347–78. http://dx.doi.org/10.1017/s1352325200000847.

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The fair use doctrine is at once the most significant and the most problematic qualification of the copyright owner's right to exclusivity. An affirmative defense against copyright liability, the fair use doctrine legitimates certain unauthorized reproductions of copyrighted materials that would otherwise be regarded as copyright infringements. Notwithstanding its importance, “fair use” continues to be “the most troublesome [doctrine] in the whole law of copyright.” Throughout its long history, neither courts nor legislatures have provided a useful definition of “fair use” nor have they adumbrated its objectjves. Since the doctrine's inception over two and a half centuries ago, courts and legislatures have attempted to formulate, explicate, refine, and revamp the fair use doctrine. Generally, these efforts have proven unfruitful. At best, they have resulted in various formulations of how to approach fair use questions that offer courts and users of copyrighted works scant guidance on how fair use should be recognized. All this would not have been of grave concern had judges shared a common understanding of fair use or of the principles that should guide them in deciding fair use cases. The problem is that they do not. Rather, the case law reflects wdely divergent notions of the concept of fair use. The lack of consensus is best witnessed in the multiple reversals and divided courts that have become the hallmark of fair use litigation.

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Neagu, Norel. "A Need for Change: The Romanian Supreme Court's Approach to 'Appeals in the Interest of Law'." Review of Central and East European Law 35, no. 3 (2010): 293–305. http://dx.doi.org/10.1163/157303510x12650378240395.

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AbstractThis article deals with the possibility of changing the approach to appeals in the interest of law in Romania according to the relevant guidelines extracted from the case law of the European Court of Justice. It provides a comparative analysis of Romanian Supreme Court decisions with those of the European Court of Justice with respect to guiding principles versus a strict interpretation of written legislation. The author highlights a modern path for the Romanian Court to follow in light of the requirements of the twenty-first century.

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Tur, Olga T., Marta B. Kravchyk, Iryna Yu Nastasiak, Myroslava M. Sirant, and Nataliya V. Stetsyuk. "Practice of applying international principles in private law relations." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 4 (December 23, 2021): 223–31. http://dx.doi.org/10.37635/jnalsu.28(4).2021.223-231.

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National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations

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Getzler, Joshua. "Chancery Reform and Law Reform." Law and History Review 22, no. 3 (2004): 601–8. http://dx.doi.org/10.2307/4141690.

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Michael Lobban shows how dissatisfaction with the law-equity split in English civil justice predated the Judicature Act reforms by two generations at least (one could argue two-and-a half centuries or more—periodization fails quickly). Lobban links the first modern debates over fusion to high legal politics on the one hand and to the more intricate internal problems of evidence, procedure, and jurisdiction on the other. Lawyers of the earlier Victorian age found the Chancery system bequeathed to them by Lord Eldon to be intolerable on two counts: it represented Old Corruption or monopolistic private control of public offices and it exacted heavy costs in procedural inconvenience, cost, and delay. Lobban does not see ideology such as Benthamite philosophy driving the rationalization of Chancery doctrine and institutions though he does not dismiss this factor entirely.

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Hagan, William T., Petra T. Shattuck, and Jill Norgren. "Partial Justice: Federal Indian Law in a Liberal Constitutional System." Journal of American History 79, no. 4 (March 1993): 1606. http://dx.doi.org/10.2307/2080263.

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Milovic, Miroslav. "The pandemic as history." Filozofija i drustvo 32, no. 1 (2021): 128–34. http://dx.doi.org/10.2298/fid2101128m.

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The author finds the possibility of overcoming the current liberal-capitalist system in a different conception of time, which requires a different attitude towards both the past and the future. The paper begins with an analysis of the Benjamin?s critique of Marx, followed by analysis of Derrida?s critique of Benjamin and finally Derrida?s critique of Marx. Benjamin points out the problem of teleological understanding of time, the understanding that the meaning of events comes only from the future, which is present in Marx, and which prevents us from escaping the ?circle? of violence. Although he relies on Benjamin?s conception of time, the author seeks to transcend the understanding of law as something separate from justice, and law as violence. Therefore, the paper turns to Derrida and his understanding of the law, eventually providing new possibilities for understanding and constituting the left, social theory, but also critical thinking today.

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Baker, Brenda M. "Empire-Building." Dialogue 32, no. 1 (1993): 149–62. http://dx.doi.org/10.1017/s0012217300015055.

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Law's Empire is a bold and ambitious attempt to provide a philosophical framework which will serve to install the judicial perspective as the preferred perspective from which to think about theories of law. The heart of its argument is that judicial determination of what constitutes law is an exercise in constructive interpretation. Judges have the responsibility to seek that story of the law that both fits reasonably with its past political history and constitutes the best justification that can be given of the legal practices of the society as a whole. They are engaged in finding an account consistent with the history of the practice that displays the point, purpose(s) and values that the law serves to express and uphold, and so brings out most fully the law's claim to authority as a legitimate expression of governmental power in that society. Dworkin believes that the interpretation of law that best satisfies these conditions is law as integrity, which conceives of law as expressing a coherent set of principles embodying those substantive ideas of justice, fairness and procedural fairness that are respected in the community. Integrity tells judges to identify legal rights and duties as though they were all created by a single author, the community personified, as an embodiment of a coherent conception of justice and fairness to which the community subscribes. In this way, integrity requires judges to interpret the rules of law as having a principled justification in a network of values and moral principles that the society adopts.

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Zaitseva, Arina. "Flesh and Blood vs Rigor of Justice The Concepts of Justitia and Aequitas in “Processus Satanae contra genus humanum”." Philosophy. Journal of the Higher School of Economics VI, no. 4 (December 31, 2022): 99–126. http://dx.doi.org/10.17323/2587-8719-2022-4-99-126.

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A fifteenth-century treatise, Processus Satanae contra genus humanum, is a peculiar artefact of late medieval culture as it blends theological, theatrical, and juridical elements significant for the period. Intended as a manual for law students, it provided an idealized example of an ordinary court hearing. According to the plot, the Devil files a complaint against the entire humankind and demands that it returns to his possession. He sends a demonic representative to defend his interests, while the Virgin Mary assumes the role of humankind's lawyer. The trial is presided by Jesus Christ the judge. After an exhausting debate, the forces of good win the case. Underneath this entertaining and grotesque façade lies a serious discussion about different types of justice and their importance for a real-life judge, lawyer, or plaintiff. The author of Processus Satanae distinguishes two types of justice — justitia and aequitas. Justitia refers to rigorous justice of human law, while aequitas refers to righteousness coupled with mercy. The latter comes directly from God; without aequitas, justitia becomes rigid law that has no real power in Christian sense. Since the Devil and his servant rely exclusively on justitia, as they do not know misery and empathy, they ultimately lose the case. In this way, the treatise warns law students against following the letter of law blindly and without regard for individual circumstances.

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Flaherty, M. S. "Human Rights Law, American Justice, and the "War on Terror"." OAH Magazine of History 25, no. 3 (June 30, 2011): 35–40. http://dx.doi.org/10.1093/oahmag/oar026.

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Goshe, Sonya. "The lurking punitive threat: The philosophy of necessity and challenges for reform." Theoretical Criminology 23, no. 1 (July 14, 2017): 25–42. http://dx.doi.org/10.1177/1362480617719450.

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Despite some encouraging reforms and a new optimism in criminal justice, problematic punishment persists in the USA. In this article, I argue that the difficulties of reform stem, in part, from an ingrained ‘philosophy of necessity’ that places punishment at the core of how to think about crime and social problems, and promotes a worldview that overvalues punishment’s ability to provide safety, provoke change and ensure justice. The philosophy of necessity grants punishment the ‘benefit of the doubt’, even when such confidence is unwarranted, and fosters reliance on punitive norms that encourage excess and abuse. A series of features work together to encourage the philosophy of necessity in the USA: blindness to the history of using punishment to ensure economic and social security for the privileged, ongoing policies that breed high levels of violence, and cultural endorsement of punitive logic as a substitution for social security and substantive justice.

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Hall, Robert W. "Platonic Rule: Fiat or Law." Polis: The Journal for Ancient Greek Political Thought 18, no. 1-2 (2001): 107–16. http://dx.doi.org/10.1163/20512996-90000034.

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A recent study contends that for Plato, the state, including the ideal state of the Republic, is better governed by unfettered personal authority than by law. The present study maintains that even in the Republic and the Statesman, as well as in the Laws, it is law, not unfettered personal rule that underlies the state. Justification for such authoritarian rule, especially in the ideal state of the Republic, lies in the supposed inability of the ordinary individual to acquire moral autonomy or Platonic justice owing to a lack of the necessary knowledge. But it is shown in this study that the ordinary individual of the ideal state can acquire an educated right opinion sufficient for gaining moral autonomy or Platonic justice.

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Rabban, David M., and Albert W. Alschuler. "Law without Values: The Life, Work, and Legacy of Justice Holmes." Journal of American History 88, no. 3 (December 2001): 1118. http://dx.doi.org/10.2307/2700492.

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Tushnet, Mark, and Lincoln Caplan. "The Tenth Justice: The Solicitor General and the Rule of Law." Journal of American History 75, no. 3 (December 1988): 1036. http://dx.doi.org/10.2307/1901733.

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Gerber, Scott D., Charles F. Hobson, and Jean Edward Smith. "The Great Chief Justice: John Marshall and the Rule of Law." Journal of American History 84, no. 2 (September 1997): 658. http://dx.doi.org/10.2307/2952627.

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Sulikowski, Adam. "The Return of Forgotten Critique: Some Remarks on the Intellectual Sources of the Polish Populist Revolution." Review of Central and East European Law 45, no. 2-3 (June 23, 2020): 376–401. http://dx.doi.org/10.1163/15730352-bja10009.

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The Law and Justice party (Prawo i Sprawiedliwość, or PiS), which has been ruling in Poland since 2015, has developed a specific narrative about the law and judiciary, which constitutes the ideological background of its stance in the conflict concerning the rule of law in the country. The main tenets of the legal ideology of Law and Justice include the views that judicial decisions are not determined by legal texts (the indeterminacy thesis), and that judges are part of an elite who are detached from society at large and are attempting to impose the liberal world-view upon a conservative society. The aim of the paper is to deconstruct those ideological constructs in a search for their possible sources in certain critical currents in the legal theory of the Polish People’s Republic, represented by Stanisław Ehrlich, Leszek Nowak and Jarosław Ładosz. The paper notes interesting parallels between the legal ideas developed by those three legal theorists and the current narrative put forward by Law and Justice. Whilst stopping short of claiming a direct and conscious inspiration, the paper nonetheless hypothesises possible avenues of influence, including the academic mentorship of Ehrlich over Jarosław Kaczyński in the early 1970s and Nowak’s involvement in the ‘Solidarity’ movement in the 1980s following his anti-Marxist intellectual and political turn. The paper concludes that legal critique in Poland, after a period of being repressed in the 1990s, is now returning; however, whilst its first appearance (in the socialist period) was a ‘tragedy’ (due to its inability to subject socialist law to any form of critique), its current return is a ‘farce’, since critical tools are used not for their original purpose (emancipation), but in order to further a populist-conservative project.

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Horky, Phillip Sidney. "Law and Justice among the Socratics: Contexts for Plato’s Republic." Polis: The Journal for Ancient Greek and Roman Political Thought 38, no. 3 (September 9, 2021): 399–419. http://dx.doi.org/10.1163/20512996-12340342.

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Abstract At the beginning of Republic 2 (358e–359b), Plato has Glaucon ascribe a social contract theory to Thrasymachus and ‘countless others’. This paper takes Glaucon’s description to refer both within the text to Thrasymachus’ views, and outside the text to a series of works, most of which have been lost, On Justice or On Law. It examines what is likely to be the earliest surviving work that presents a philosophical defence of law and justice against those who would prefer their opposites, On Excellence by an anonymous author usually referred to as ‘Anonymus Iamblichi’; the views on these topics among the Socratics, including Crito, Simon the Cobbler, Aristippus of Cyrene, and Antisthenes; and Socrates’ debate with Hippias ‘On Justice’ in Xenophon’s Memorabilia (4.4.5–25). Its main contention is that the ‘countless others’ referred to by Glaucon points chiefly, but not solely, to the members of the circle of Socrates, who themselves espoused a range of views on justice and law, and their relations.

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Lewis, K. "Text(Plus-Other-Stuff)ualism:Textualists' Perplexing Use of the Attorney General's Manual on the Administrative Procedure Act." Michigan Journal of Environmental & Administrative Law, no. 1.1 (2012): 287. http://dx.doi.org/10.36640/mjeal.1.1.text.

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Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach inaccurate results that aggrandize the Executive Branch. This Note canvasses the possible explanations for this phenomenon and ultimately concludes that there is no principled way that textualist judges can reconcile their use of the Manual with their jurisprudential philosophy. In other words, there is no principled reason to rely on the Manual while simultaneously rejecting more traditional forms of legislative history.

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Rendleman, Dennis A. "“Morals and ethics and law, oh my!” – an historical perspective on the aba model rules of professional conduct." Baltic Journal of Law & Politics 6, no. 2 (December 1, 2013): 1–23. http://dx.doi.org/10.2478/bjlp-2013-0009.

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ABSTRACT This paper discusses the tensions between moral obligations, ethical rules and legal requirements contained within the American Bar Association Model Rules of Professional Conducts by reviewing the history and evolution of the Model Rules and the conflicting societal purposes served by the Rules regarding client protection, attorney regulation, jurisprudential philosophy and social justice. Equally important is a discussion of the parallel development of attorney discipline.

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Weingartner, J. J. "Military Justice in Vietnam: The Rule of Law in an American War." Journal of American History 94, no. 1 (June 1, 2007): 333. http://dx.doi.org/10.2307/25094913.

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Richter, Daniel K., and Yasuhid Kawashima. "Puritan Justice and the Indian: White Man's Law in Massachusetts, 1630-1763." Journal of American History 74, no. 2 (September 1987): 495. http://dx.doi.org/10.2307/1900049.

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Hewitt, Annie. "Universal Justice and Epieikeia in Aristotle." Polis: The Journal for Ancient Greek Political Thought 25, no. 1 (2008): 115–30. http://dx.doi.org/10.1163/20512996-90000128.

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As laws are written in ‘universal terms’ they offer inadequate guidance for those difficult cases that do not fall neatly under one general rule or another. While Aristotle is clear that written laws are essential to secure justice in a political community, he is quick to recognize that alone they are insufficient to achieve this aim. Bridging the gap between legal principle and concrete situation is Aristotle’s concept of epieikeia: that virtue which ‘corrects’ the law where it falls short. Through an acute attentiveness to relevant mitigating factors, epieikeia allows the judge to discern what — beyond rigid application the law — a just decision entails. However, though triggered by and tied to particular circumstances, epieikeia does not sanction egregious deviation from established law. This is because it serves the ends of ‘universal’, or ‘natural’ justice (itself derived from the fixed nature of man) and so is guided, and therefore constrained by its fixed and unchanging principles. In conclusion, this article explores the normative repercussions of incorporating epieikeia into legal decisions, specifically how it might work to transform justice into a virtue which promotes mercy, kindness, and forgiveness.

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Quinn, Michael. "ARISTOTLE ON JUSTICE, EQUALITY AND THE RULE OF LAW." Polis: The Journal for Ancient Greek Political Thought 9, no. 2 (1990): 170–86. http://dx.doi.org/10.1163/20512996-90000363.

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Callaghan, John. "Utilitarianism and distributive justice: Jeremy Bentham and the civil law." History of European Ideas 14, no. 5 (September 1992): 739–42. http://dx.doi.org/10.1016/0191-6599(92)90011-z.

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Ramírez Carvajal, Diana, Débora Guerra Moreno, and Vanessa Franco Ramírez. "LA NORMA SUSTANCIAL CODIFICADA EN LA EDUCACIÓN DE LOS ABOGADOS DEL SIGLO XXI Y EL IMPERATIVO DE LOS ODS." Revista Republicana 32 (March 15, 2022): 143–78. http://dx.doi.org/10.21017/rev.repub.2022.v32.a121.

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The correct application of the law depends to a large extent on a good legal education, which must be reformulated around the new dimensions of global justice and the ODS, unmasking the emotional and ideological veils, inherited from the codifications of the 19th century. This article highlights the importance of untying the history of legal education, strengthening the study of the process and the evidence for the judicial justice of the 21st century, which must revolve around the 2030 Agenda. Strengthening procedural guarantees, deepening argumentation, epistemology, logic and philosophy, will lead the lawyer of the future to work for a healthy coexistence and a more just world.

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O'Regan, Kate. "Justice & Memory: South Africa's Constitutional Court." Daedalus 143, no. 3 (July 2014): 168–78. http://dx.doi.org/10.1162/daed_a_00297.

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In a society such as South Africa in which the past has been deeply unjust, and in which the law and judges have been central to that injustice, establishing a shared conception of justice is particularly hard. There are four important strands of history and memory that affect the conception of justice in democratic, post-apartheid South Africa. Two of these, the role of law in the implementation of apartheid, and the grant of amnesty to perpetrators of gross human rights violations, are strands of memory that tend to undermine the establishment of a shared expectation of justice through law. Two others, the deeprooted cultural practice of justice in traditional southern African communities, and the use of law in the struggle against apartheid, support an expectation of justice in our new order. Lawyers and judges striving to establish a just new order must be mindful of these strands of memory that speak to the relationship between law and justice.

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Lafontaine, Fannie. "Justicia en Conflicto y Conflictos sobre Justicia: el Derecho Internacional Penal en Tiempos de Altas Expectativas." Araucaria, no. 32 (2014): 339–58. http://dx.doi.org/10.12795/araucaria.2014.i32.17.

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LÓPEZ BRAVO, Carlos. "Consideraciones sobre el concepto natural en san Pablo." Revista Española de Filosofía Medieval 9 (October 1, 2002): 275. http://dx.doi.org/10.21071/refime.v9i.9350.

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In the history of Legal Philosophy, natural law concept, reflected in both two first chapters of the Letter of San Pablo to the Romans, means the birth of a new Iusnaturalism. This concept takes roots in the greco-roman classic thought and is based on the new anthropological dimension that provides Christianity. From the Apostle critical view regarding the mosaic law, we can analyse the idea of a nonwritten law that flows from human nature. This law is born in men's heart and works for grace and true justice, represented by Gospel. In addition this natural law constitutes an unequivocal test of the existence of a natural ethics and a theology based on reason.

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Phillips, John-Otto. "Law, Compulsion and Community in Plato’s Republic." Polis: The Journal for Ancient Greek Political Thought 28, no. 1 (2011): 108–25. http://dx.doi.org/10.1163/20512996-90000181.

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This article examines Plato’s claim that the founders of the ideal city ought to establish a law compelling the philosophers to rule. This claim is perplexing as it seems to suggest that in the ideal city justice is not in the best interests of its possessor, for by obeying the law and ruling the philosopher will in turn be made very unhappy. Following a critical appraisal and ultimate rejection of a number of different attempts to make sense of this tension, this article advances a ‘communitarian’ interpretation. According to this interpretation, the existence of a law compelling the philosopher to rule is ultimately in her best interest because her ruling will lead to a well-educated and intellectually virtuous community. The existence of this virtuous community will, in turn, allow the philosopher better to achieve her principal goal—the attainment and preservation of truth.

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RASMUSSEN, MORTEN. "Establishing a Constitutional Practice of European Law: The History of the Legal Service of the European Executive, 1952–65." Contemporary European History 21, no. 3 (June 13, 2012): 375–97. http://dx.doi.org/10.1017/s0960777312000252.

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AbstractThe origins of the constitutional practice of European law clearly lie in the two famous rulings of the European Court of Justice (ECJ) Van Gend en Loos (1963) and Costa v. E.N.E.L (1964). Despite this, very little is known for sure about the genesis of the ECJ's interpretation or the dynamics within the Court at the time. Most accounts focus on the role of the ECJ in revolutionising European law. Using recently disclosed archival material, this article traces the role of the Legal Service of the European executive in the development of the constitutional practice. It demonstrates that the Legal Service played a crucial role both in terms of devising the legal philosophy behind the two rulings and in the establishing of a professional and academic field of European law, which would underpin the constitutional practice. At the same time it shows that the ECJ – although it adopted the legal philosophy recommended by the Legal Service – did this in a cautious and restricted manner to minimise national resistance.

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Zakharova, Maria, and Vladimir Przhilenskiy. "Anti-Rawls or the Russian Way of Eurasian Integration." Russian Law Journal 7, no. 3 (August 17, 2019): 12–37. http://dx.doi.org/10.17589/2309-8678-2019-7-3-12-37.

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This article examines Eurasian integration in the context of the ideas which accompany it and make possible the implementation of its practices, especially law-making and law-enforcement practices. The central theme of the article is the competition among values and social technologies claiming to play an integrating role. The starting point of this analysis is the theory of justice by John Rawls presented in the form of many interpretations thereof by legal theorists, as well as experts in the field of political and moral philosophy. It is examined based on assessments made from the standpoint of the politico-legal and socio-historical development of the West, as well as on attempts to look at this theoretical concept from a different cultural and civilizational point of view. Detailed consideration is given to the ideas and images of justice formed within the philosophical symbiosis of Confucianism and Legalism and providing a value-based legal identity of the Chinese civilization. The article shows that the ideas and values of the Rawlsian theory of justice are rooted in the political and legal history of European civilization and the dependence thereof on the philosophical and theoretical language of European enlighteners and even on the Indo-European national language family. As the main alternative to the neoliberal theory of justice, the article studies the philosophical and theoretical and politico-legal heritage of the Eurasianists. The theory of Eurasian law advanced by representatives of this movement is analyzed in depth. This type of legal relations, based on obligations, is considered as a special type of law capable of uniting heterogeneous entities without requiring their full unification or depriving them of their civilizational and value-based peculiarities. The authors analyze the real experience of economic and politico-legal integration, both within the framework of international organizations and at the level of inter-governmental [inter-country] cooperation. An assessment is made of the justifiability of the claims of Eurasianist philosophy regarding its ability to successfully provide integration processes in this part of the world.

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Todd, S. "Review. Greek law. The justice of the Greeks. R Sealey." Classical Review 46, no. 2 (February 1, 1996): 291–92. http://dx.doi.org/10.1093/cr/46.2.291.

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Basturk, Efe. "An Arendtian Reading of Antigone: Tyrrany Emerging from Righteousness." Problemos 101 (April 26, 2022): 66–78. http://dx.doi.org/10.15388/problemos.101.6.

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The aim of this article is to investigate the tyrannical similarity between Antigone and Creon through Hannah Arendt’s political philosophy. As Arendt claimed, tyranny firstly signals the end of the political through which men can share their natality. The very meaning of tyranny is the domination by absoluteness that ends deliberation among mortal beings. Antigone only focuses on the divine law, which is seen as absolute righteousness that precedes the law of the city, and so, she tends to ignore any other option on rightfulness. This article aims to show that not only Creon but also Antigone can be regarded as a tyrant, since Antigone tends to sublime her dedication to an infallible justice, causing her to deny any other claim on justice.

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Schmalenbach, Kirsten. "Defending Democracy and the Rule of Law in the Era of Post-Enlargement." Review of Central and East European Law 45, no. 4 (December 16, 2020): 409–31. http://dx.doi.org/10.1163/15730352-bja10037.

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Abstract This contribution critically analyses the four limbs of the EU’s defence mechanism upholding the rule of law within the Union. The first being the individual post accession rule of law mechanism, introduced by the Commission in 2006 for the two new member states Bulgaria and Rumania. The second, and arguably most powerful limb, involves the EU Court of Justice conducting a judicial review of a member state’s rule of law situation, which is of far greater concern for reviewed members than the so-called “nuclear” last-resort option of Art. 7 teu ’s sanction mechanism (fourth limb) that is politically difficult to enact. With a view to the politically fraught Art. 7 teu, the Commission introduced a new “early warning” rule of law framework in 2014 which pre-emptively enables exploring dialogue-based solutions to rule-of law issues as they emerge (third limb).

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Bakhnovskaya, I. P., and O. A. Slobodyska. "Legal nature of social justice as an integral part of the principle of justice." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 180–84. http://dx.doi.org/10.24144/2307-3322.2021.64.34.

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The article presents and solves the scientific problem of identifying the legal nature and content of social justice as an integral part of the principle of justice. The theoretical and normative basis of the study were scientific works of domestic and foreign scientists in the field of jurisprudence, philosophy, political science, sociology, history. They are devoted to the general problems of the essence of the principle of justice, its value and normative content, social and legal nature of the principle of justice, issues of legal certainty and stability of legal regulation, specific problems of implementation of the constitutional principle of justice. The problem of justice, namely social justice becomes especially relevant in the context of globalization. The practice of the Constitutional Court of Ukraine shows that the Constitution of Ukraine does not enshrine the principle of social justice in a direct form, but the entire legal system is based on the idea of justice. It is established that justice essentially reflects the realities of a society, the level of its cultural and legal maturity. It can manifest itself at different social levels, in different spatial and temporal dimensions. Thus, correlating the concepts of justice and law, justice can be considered as a legal standard with which the real socio-economic, political, financial, moral and ideological relations. Justice is not only a moral, philosophical category, but, first of all, a legal one. Justice is a legal phenomenon that relates to the very essence of law and is the distinguishing feature between law and the principles of law. In addition, it is a phenomenon of morality, because it is an idea that determines the moral principles of society. It should be noted that in some cases the application of the principle of justice is complicated, for example, when it conflicts with the principle of legality. Attention is drawn to the fact that in our state the principle of justice is not fully implemented. Social justice is the most important social value, a creative phenomenon that contributes to the reform of society on the basis of democ-racy and humanism.

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Journal articles on the topic 'History and philosophy of law and justice'

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