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image/svg+xml Jakob Voss, based on art designer at PLoS, modified by Wikipedia users Nina and Beao Closed Access logo, derived from PLoS Open Access logo. This version with transparent background. http://commons.wikimedia.org/wiki/File:Closed_Access_logo_transparent.svg Jakob Voss, based on art designer at PLoS, modified by Wikipedia users Nina and Beao https://doi.org/10.1...arrow_drop_down
image/svg+xml Jakob Voss, based on art designer at PLoS, modified by Wikipedia users Nina and Beao Closed Access logo, derived from PLoS Open Access logo. This version with transparent background. http://commons.wikimedia.org/wiki/File:Closed_Access_logo_transparent.svg Jakob Voss, based on art designer at PLoS, modified by Wikipedia users Nina and Beao
https://doi.org/10.1017/978110...
Part of book or chapter of book . 2018 . Peer-reviewed
License: Cambridge Core User Agreement
Data sources: Crossref
SSRN Electronic Journal
Article . 2017 . Peer-reviewed
Data sources: Crossref
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For Legal Principles

Authors: Berman, Mitchell N.;

For Legal Principles

Abstract

Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist. In this essay, prepared as a contribution to a festschrift in Alexander’s honor, I argue that Alexander and Kress have not established their ambitious claim. Even if they have shown that legal principles, understood as norms distinct both from legal rules and from moral principles, cannot perform the function that Ronald Dworkin assigned them — namely, that of morally justifying legal rules and practices — Alexander and Kress have cast no doubt on a distinctively positivist account of legal principles as fundamental legal norms that possess weight, are grounded directly in social facts, and serve to metaphysically determine or constitute legal rules. I show why that positivist picture of legal principles survives Alexander’s multi-pronged attack. And I further explain why the existence of legal principles causes grave trouble for Alexander’s “simple-minded” defense of constitutional originalism.

Country
United States
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Keywords

living constitutionalism, originalism, Law and Philosophy, legally fundamental norms, 330, Public Law and Legal Theory, constitutional law, Ethics and Political Philosophy, intentionalism, Larry Alexander, Jurisprudence, 340, constitutional theory, legal principles, legal theory, moral justification, principled positivism, non-originalism, Other Philosophy, Ronald Dworkin, Ken Kress, Robert Alexy, Law

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
2
Average
Average
Average
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