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The article discusses the 19th century American philosopher Ralph Waldo Emerson's influence on the U.S. Supreme Court Justice Oliver Wendell Holmes Jr.'s (Junior's) legal philosophy, including the Holmes' perspective on legal realism. The impact of Emerson on Holmes' view of the posthumous, or postponed, power of the philosopher through written word is discussed.

Based on a detailed analysis of Gentili’s use of sources in De iure belli, this article argues that Gentili’s famous treatise on the laws of war is an incongruous attempt at reconciling an absolutist conception of sovereignty and a strong penchant for reason of state principles with an enduring commitment to the language of natural law and to its centrality in ordering relations between sovereigns. [ABSTRACT FROM AUTHOR]

Scholars of emotion and the law have sought to demonstrate the significant role emotion plays in shaping the operation of courtrooms, the development of legal theory and practice, and the possibilities for justice. This paper contributes to the discussion by exploring what happens when emotion is ignored or underplayed in trial narratives, seeking to demonstrate that whose emotion is considered to be important can shed light on power dynamics, law and the cultures in which law operates. It does so through a case study of women on trial for murdering their husbands in early nineteenth-century Ireland. It argues that emotion is not simply another species of evidence that can be used in criminal processes, but itself a type of narrative – emotion is constructed and performed by actors in legal dramas and forms a competing story to others in the courtroom space. [ABSTRACT FROM PUBLISHER]

The article discusses the Hart-Dworkin debate involving the legal theories of then-law professors Ronald Dworkin and H.L.A. Hart in the 1900s, and it mentions Dworkin's article "The Model of Rules" which appears in a 1967 law review, Hart's book "The Concept of Law," and Dworkin's article "Hart's Posthumous Reply" which appears in this issue of the journal. Legal positivism and the moral aspects of legal rights and obligations are examined, as well as legal interpretivism.

The purpose of the essay is to recover a correct conception of natural law and goodness in the ethics of Saint Thomas Aquinas. It suggests that the dominant interpretation of Thomism known by legal philosophers—that of John Finnis—is importantly at variance with Aquinas’s true account. Against the dominant interpretation, a true account of natural law must (i) differentiate between natural law and ethics in the full sense (moral theology), and (ii) interpret references to human good as references to virtuous goodness rather than non-moral goodness. The main body of the essay explores the place of these concepts in Aquinas’s account of ethics. [ABSTRACT FROM PUBLISHER]

United States patent law's view on the need for a physical embodiment of the invention, and the continued production and use of an embodiment, has varied over the last two centuries. In the early days, the requirement for ?physicalism? was high, with the inventor being required to actually reduce the invention to practice prior to patenting, and enforceability was tied to ?working? the claimed invention. By the early 1900s, these requirements of physicalism disappeared. This changing view on physicalism speaks volumes as to which major patent theory the law emphasizes, with physicalism supporting the incentive to invent theory and the shift away from this physicalism bringing the disclosure theory to the forefront. This interplay between physicalism and patent theory, particularly regarding post-issuance physicalism, not only explains the past, it also describes the current discourse regarding, and legal reaction to, non-practicing entities (?NPEs?). Decisions such as eBay v. MercExchange, denying exclusivity to NPEs, once again emphasize physicalism and are interrelated to the incentive to invent and, in turn, downplay the disclosure theory and question its current validity as a patent policy goal. [ABSTRACT FROM AUTHOR]

Embedded in our national identity, the right to reap the fruit of one's labor defines the quintessential American Dream. This ownership right seems so intuitively obvious that it needs no logical explanation, and thus John Locke's foundational theory of property rights is often misinterpreted from the start. Locke's labor theory of acquisition has perpetuated a kind of philosophical circuit split among scholars, relegating his ideas to a realm of partisan politics. These misinterpretations are unfortunate because, when properly applied, Locke's property theory holds the promise of resolving complex issues in copyright law and theory. In the tradition of Locke's contextualist interpreters, this Comment examines Locke's philosophy and its context with the aim of describing a theory of Lockean copyright that is compatible with the basic tenets of American copyright law. Because the Lockean copyright theory offered here accounts for both procedural and consequential goods, it has stronger prescriptive power than the current utilitarian model and can do more work. Also, because Lockean duties lend well to bright-line rulemaking, applying Lockean thinking to legal analysis can streamline litigation. As an example of Locke's cash value to copyright law, this Comment expounds upon his thoughts on the natural law duties of property owners and the state's role in mitigating transaction costs of private ownership to assign burdens of proof at trial. This framework is utilized to outline a potential solution to the circuit split over whether the merger doctrine should apply during the copyrightability stage or the infringement stage of a copyright infringement lawsuit. [ABSTRACT FROM AUTHOR]

The article discusses the historical origins of the late English jurist William Blackstone's theory which favors acquittals of guilty parties if they minimize the number of innocent people who are convicted of crimes, and it mentions errors in criminal justice (CJ) and jurist Daniel Epps' claim that Blackstone's theory might actually harm innocent defendants. Traditional justifications for Blackstone's CJ principle are assessed, along with legal history and the benefits of judicial errors.

The present study addresses the difficulty regarded on the gap between ideal/real on law and religion phenomena, and seeks to understand the motives and reasons for the inability of the western legal framework to deal with problems arising from religious practices. The paper starts from the assumption that mankind is not defined solely through social objects in which manifests itself in compact and concentrated way. There is a transverse dimension on humankind that works in active or latent way in the entire thickness of social reality, which does not fit in the immanence of Law. The transversality of religion and its reverberations in other spheres of human life is bounden to review the issue of deontological nexus that exists in the law. Thus, in this study concluding remarks, the problem of the gap on “Is-Ought problem” prevailing on Law Theory, may be primarily located in the binomial relation “Religion-praxis/Law-techné”. [ABSTRACT FROM AUTHOR]

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The article discusses the history of legal positivism, and it mentions various concepts which address issues related to the nature of law and the relationship between legal theory and legal reform. Judicial decision making is addressed, along with the views of various legal theorists such as Thomas Hobbes, Jeremy Bentham, and H.L.A. Hart. The history of jurisprudence is examined, as well as theorist Jules L. Coleman's observations about legal positivism.

The article discusses the late legal philosopher Thomas Hobbes' views about law and punishment in relation to various contemporary efforts to describe law and the relationship between punishment and law as of 2015. Hobbes' account of human interaction is addressed, as well as several legal theories, jurisprudence, and Hobbes' sanction-based theory of law. Hobbes' book "Leviathan" is examined, as well as issues involving sovereignty and subversion.

The article presents a response to the article "Jurisprudence, History, and the Institutional Quality of Life" by Nicola Lacey which appears in the same issue of the journal, and it mentions an inquiry into the relationship between history and legal theory, as well as a historical overview of the legal aspects of criminal responsibility. The views of criminal law theorists are mentioned, along with criminal law history and the legal treatment of suspected witches and animals such as weevils.

Many common accounts of natural law understand it in opposition to modem social welfare theory. Contrary to that wisdom this Essay shows how many of the fixed landmarks of the common law, including its rules on individual autonomy and the definition and acquisition of private property, comport with the natural law tradition. The modern welfarist positions only emerge through key decisions in 19th century law, which then help explain the choice among three welfarist positions: Kaldor-Hicks, Pareto, and a more rigorous standard that requires pro rata gains among all parties. This Essay uses a transaction costs framework to explain the proper deployment of these three rules. [ABSTRACT FROM AUTHOR]

The article discusses progressive legal thought in America, and it mentions U.S. legal history, neoclassical economic thought, and issues related to market diversity and the U.S. Constitution's Commerce Clause. American antitrust regulations are mentioned, as well as risk management and corporate finance in the country. Social policy and the distribution of wealth are examined, along with labor problems and then-U.S. Supreme Court Justice Oliver Wendell Holmes Jr.'s views about marginalism.

The article analyzes the theory of the domain of the fact from the point of view of national doctrine and jurisprudence. The starting point is that the homeland doctrine dispenses an absolutely incongruous treatment regarding the theory of the domain of the fact, because it confuses, longtime, the concepts of Welzel and Roxin, mixing dogmatic categories and arguments incompatible. It is shown that this problem reflects in homeland jurisprudence and that, therefore, the judgement of APn 470 of the STF was just expression of an absolutely incongruous judicial praxis, that comes from longtime. [ABSTRACT FROM AUTHOR]

The article discusses the roles of legal and factual certainty in the legal theories of philosopher Francis Bacon. It is suggested that while Bacon believed legal and factual certainty to be of equal importance, he emphasized legal certainty in his writings on law reform because he believed that British jurisprudence adequately addressed the establishment of facts. Other topics include reason, legal interpretation, testimony, and evidence.

The article discusses the late philosopher Michel Foucault's theory of law in relation to the extent to which his Foucauldian theory can be incorporated into legal policy as of 2014, and it mentions Foucault’s views regarding modernity and political activism. Positive jurisprudence and the development of legal policy are examined, as well as Foucault’s study of power and its impact on an individual human subject. Sovereignty, governmentality, and the concept of bio-power are also examined.

The article discusses the views of philosopher and economist Adam Smith on justice and law in relation to his historical views. Topics include Smith's notion of moral sentiment in relation to his philosophy of history, Smith's book "The Theory of Moral Sentiments," and his views on naturalness in relation to historical progress.

An essay is presented which discusses the 20th century French deconstructionist philosopher Jacques Derrida's perspective on the German Jewish philosopher Walter Benjamin's theory on violence. An overview of Derrida's philosophy on democracy, law, justice, politics, state authority and violence is provided.

The article discusses the Italian philosopher Giorgio Agamben's political aesthetics, including in regard to potentiality, sensibility and the relationship between the law and violence. An overview of the political aspects of art and language, including in regard to the relationship between gesture and language, is provided.

The article discusses the 20th century philosopher and Torah scrolls scholar Emmanuel Lévinas' perspective on the relationship between law and violence, including in regard to the sovereignty, or autonomy, of the individual. Lévinas' philosophy on the relationship between the self and the other (Autrui), including the ethical aspects of the relationship, is discussed.

The article discusses the terminology associated with the relationship between law and right (or ethics), with a particular focus on the German philosopher Martin Heidegger's perspective on the nonviolence of being. Heidegger's philosophy on the relationship between power and nonviolence, including in regard to the distinction between the German terms Ge-Walt and Gewalt (violence or force), is discussed.

The article discusses the German-Jewish philosopher Walter Benjamin's theory known as divine violence, including in regard to the relationship between violence and the law. An overview of political violence in revolutions, including during the Reign of Terror of 1792 through 1794 during the French Revolution, is provided. Benjamin's philosophy on the relationship between power and justice is discussed.

The article discusses the German philosopher Georg Wilhelm Friedrich Hegel's perspective on law and violence during his time living in Frankfurt, Germany, including in regard to the power of law. An overview Hegel's philosophy on religion, including in regard to Jewish law and Christianity, is provided. Hegel's point of view on the relationship between community and law is discussed.

The essay examines the idea of Nomos, a foundational legal principle developed by German legal theorist and philosopher Carl Schmitt in the mid-twentieth century, highlighting how Schmitt's writing oscillates between legal and philological scholarship as it defines its terms and concepts. Issues raised include Schmitt's insistence of a connection between law and landownership, his reliance on ancient Greek philosopher Pindar, and his interest in the German Romantic writer Friedrich Hölderlin.

The article discusses two schools of legal thought in Germany and the United States in the early twentieth century which both criticized the alleged formalism of classical nineteenth-century legal theory: the so-called Freirechtsbewegung (Free Law Movement) and Legal Realism, respectively. The author compares the two schools' approaches to the interpretation and construction of law and to legal normativity. In addition, she reflects on the interpretation of the two schools in the historiography of German and American jurisprudence, including in the works of legal historians David Rabban and Luigi Lombardi Vallauri.

There is a tendency in international legal discourse to tell the story of international law as a story of progress. ‘Progress’ is a concept which is tied to the process of secularization and Western 18th and 19th century philosophy. It still inspires the debate on international law – despite all setbacks in ‘real history’. This article argues that progress narratives in the international legal discourse are constructed by – more or less subtle – argumentative techniques. It highlights four such techniques – four ‘bundles of arguments’ – which play a key role: ascending periodization, proving increasing value-orientation of international law, detection of positive trends, and paradigm shift-talk. The article offers an explanation of why the pro gress argument often succeeds in international legal discourse. [ABSTRACT FROM PUBLISHER]

Judicial roles provided the raj with major dilemmas. One persistent dispute related to civil servants sitting as judges. Critics argued that civil servants had a superficial legal education and lacked appropriate practical experience of work in the courts. Defenders of their judicial role contended that the best training for judges lay in administrative work on the plains of the sub-continent. Governors-general, viceroys, and others in executive positions claimed that such work provided officials with an understanding of Indian society and that this social knowledge made them effective judges. Professional judges drawn from the ranks of barristers and sitting in the major cities of Calcutta, Bombay and Madras frequently contested this view and the result was sustained disagreement. At the heart of the debate lay competing visions of justice. [ABSTRACT FROM PUBLISHER]

The article discusses the writing of Roman historian Titus Livius Patavinus, known as Livy, with reference to his writing on the trial of Caeso Quinctius in the work "Ab urbe condita." Topics mentioned include the concept of vadimonium in Roman law, the views of Livy on Roman law and legal thought, and symbolic elements of the name Caeso and Livy's writing on the subject.

This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart's paper -- Discretion -- in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart's work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart's work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart's year as a visiting professor. Hart's Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history. [ABSTRACT FROM AUTHOR]

The author examines 17th-century Dutch legal theorist Hugo Grotius's contribution to the development of modern natural law, focusing on his appropriation of Jewish sources and the writings of theologian Philo Judaeus in particular. The author looks at Grotius's rejection of Scholasticism as espoused by Saint Thomas Aquinas, and his interest in the ancient philosophies of Skepticism and Stoicism. Topics include Grotius's work "De jure belli ac pacis," or "On the Law of War and Peace," Grotius's application of Hebraism and Mosaic law to natural law theory, and Philo's understanding of the Torah as God's law. Also discussed is Jewish philosopher Moses Maimonides.

In this paper I argue that we should look to Hobbes rather than to Locke as providing a philosophical forerunner of modern and current rights theories and further, that Hobbes's theory has relevance to and 'speaks to' current philosophical and jurisprudential analysis of the foundations of rights, in a way that Locke's theory cannot. First, I summarise the argument that Hobbes does have a substantive theory of individual rights. Second, I argue that the project undertaken by A. J. Simmons, to 'reconstruct' Locke's theory of rights without the theological premises, cannot succeed. Locke's theory of natural rights is thoroughly dependent on its theological premises. Third, I argue that Hobbes's theory of rights is not dependent on theological premises. Finally, I try to illustrate the ways in which Hobbes's theory is still relevant and useful for current debates within rights theory. [ABSTRACT FROM AUTHOR]

Most students of constitutions focus on normative questions or study the effects of particular constitutional provisions. This article falls into a third and much smaller tradition that attempts to study what makes some constitutions more likely to survive. This article develops a theory of self-enforcing constitutions and then applies it to the early United States. But for the issue of slavery, constitutional democracy in the United States was self-enforcing by about 1800. Nonetheless, crises over slavery threatened the nation on numerous occasions. The civil war decisively ended slavery as a source of political division, allowing self-enforcing democracy (for white males) to reemerge following the Compromise of 1877. [ABSTRACT FROM PUBLISHER]

The article discusses the relationship between the legal philosopher and U.S. Supreme Court Chief Justice Oliver Wendell Holmes, Jr. and the dean of Northwestern School of Law John Henry Wigmore, with a particular focus the former's influence on the latter's legal thought. The influence that the book "The Common Law," by Holmes had on Wigmore, including on his view of tort theory, is discussed. An overview of the book "A Treatise on the System of Evidence in Trials at Common Law," by Wigmore, including Holmes' appreciation of the legal reference book, is provided.

The article examines the interpretation of "Scienza della legislazione," a late 18th-century treatise on politics and the legislative power of governments by Italian legal philosopher Gaetano Filangieri, by the early 19th-century French politician and political theorist Benjamin Constant. It outlines the context of Filangieri's work, its publication history, and its reception in Europe in the Napoleonic era. It then details its critique by Constant, especially its emphasis on civil rights and natural law, and the influence of this critique on early European liberalism and its understanding of constitutional theory and republicanism.

The article discusses several slave laws in Portugal during the late 18th and early 19th centuries, particularly a 1761 decree putting the legal concept of free soil into effect. According to the authors, the decree stipulated that any slaves that were unloaded in any part of the Portuguese kingdom would be free. The authors argue that, because of economic difficulties within the Portuguese empire and a desire on the part of the government to free its country and colonies of slaves, the decree of 1761 was a threat to slave owners and traffickers. The authors also examine a 1773 decree, known as the "free birth law," that freed fourth-generation slaves within the Portuguese kingdom. The authors also explore the influence of Roman law on the various laws and decrees regarding slavery.

The following paper offers a contribution to the history of "Contemporary Legal Hermeneutics" (CLH). My final goal is to find out the underlying factor of such spiritual movement as well as its difference from other types of Legal Hermeneutics. The principle chosen for my purpose is historiographical. According to this latter the spiritual movements are explained only by their original question, otherwise they remain incomprehensible. In this sense, I reject the popular thesis that represents CLH just as the introduction of Gadamer's hermeneutics into law studies. My counterargument is based on Gustav Radbruch's writings, where the dialectic between law's normative and factual elements - that constitute the hard core of CLH - is for the first time dissected. I support such conclusion by presenting Radbruch's philosophy of law, especially its hermeneutical-legal concepts and gaps. [ABSTRACT FROM AUTHOR]

This article considers the influences on the philosophy of Argentine political theorist Juan Bautista Alberdi. It examines the role of French philosopher Eugène Lerminier's legal historicism in shaping Alberdi's political theory. The author also analyzes the importance of natural law, formulated by French philosopher Théodore Jouffroy, in the foundation of Alberdi's liberalist political leanings. Alberdi's political philosophy and its impact on the development of liberalism and law in Argentina in the 19th century is also explored.

In his most practical work, the Laws, Plato combines a frank statement of the radical Socratic thesis that virtue is knowledge and vice involuntary with a prudential acceptance of the political community's need for retributive punishment. This paper examines the Laws' statements of principle regarding responsibility and punishment and compares these with the actual criminal code proposed in Book 9. The result is to show how a radical philosophic insight can be adapted to make ordinary citizens more gentle, thoughtful, and humane without sapping their moral commitments. Lessons are drawn from the Laws for the contemporary restorative justice movement. [ABSTRACT FROM AUTHOR]

This essay discusses criminal law theories in late Imperial Russia. It argues that, although the political climate of Reform and Counter Reform effectively undermined attempts to implement new legislation premised on the idea of the ‘rights-enabled person’ ( pravovaya lichnost’), paradoxically, it fostered the growth of juridical scholarship. Russian criminal law theorists engaged critically with Western juridical science, which, beginning in the 1870s, witnessed a shift away from absolutist theories inspired by the classics of philosophical idealism towards various strains of positivism arguing for the restoration of the person as a concrete, physiological being. However, while Russian scholars were drawn to these new trends of criminal anthropology and the sociology of crime, they were also obliged to take stock of an indigenous legal culture that scarcely differentiated between pravo and zakon, together with a long tradition of customary practices that equated crime and punishment with sin and redemption. [ABSTRACT FROM AUTHOR]

The problem of the legal person is a central issue in legal philosophy and the theory of law. In this article I examine the semantic meaning of the concept of the person in Russian philosophy at the turn of the twentieth century, considered to be the “Golden Age” of Russian legal thought. This provides an overview of the conception of the personality in the context of different legal approaches (theory of natural law, legal positivism, the psychological legal doctrine, and the sociological school of law). I indicate a polemic among the theories of the person and attempts to create an integral concept of the legal subject. In addition I present an analysis of the relation between the concepts of the legal subject and the moral person, which personify fundamental features of law and morality. In order to demarcate the notions of individual and the legal subject, I focus on doctrines of the artificial person or the juridical person. [ABSTRACT FROM AUTHOR]

El artículo presenta un análisis de la concepción de la filosofía del derecho propuesta por el profesor Robert P. George, de la Universidad de Princeton. El autor discute las bases del pensamiento del profesor George, quien analiza la concepción del derecho natural desde la perspectiva del cristianismo, ejemplificada en la epístola de San Pablo a los Romanos y en la "Suma Teológica" de Tomás de Aquino.

This article discusses the common law, or ius commune, in Europe during the Middle Ages. It examines several characteristics of the common law, including pluralism, its origins, and relationships between the laws. The author studies the process of the development of common law, legal philosophy in the Middle Ages, and the legitimacy of laws. He also provides an analysis of who was vested with condere legem, or the power to make laws, during this time period. The lack of a standardized system for law making, legislation, and enforcement, including the controversy over common law legitimacy, is also explored.

Authir gathers the main aspects of the life and juridical work of the Jesuit priest mario Valenzuela Pieschacón, S.J., who promoted the restoration of Universidad Javeriana and wrote several manuscripts, among them, "Rules of Civil Law" which is very interesting primary source to undertand the interpretations produced by the ecclesiastic community about civil legislation by the end of the XIX Century. [ABSTRACT FROM AUTHOR]

John Locke's chapter on property in the 'Second Treatise of Government' undermines the feudal theory of tenure and liegnancy prevailing in English law and restores classical allodial natural property rights to all individuals. Then, in order to explain the transformation of common property into private property, Locke proposes his "labor theory" of appropriation: whatever common property I "mix" my labor with becomes private property. This is a rather strained adaptation of the classical legal theory of the ownership of mixtures and merged entities, which can be found in Justinian's Institutes and Digest. Although Locke's earlier writings show no familiarity with legal literature except for Grotius and Pufendorf, at the end of his life he consciously applied classical theory while avoiding the appearance of doing so by adapting it to the Protestant concept of labor as an intrinsically valuable activity and transforming that activity into a quasi-material entity capable of combination with other material entities. [ABSTRACT FROM AUTHOR]