Normative Jurisprudence

Joseph Raz's new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz's topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz's thinking on these topics, I raise (...) some room for doubts – especially with regard to his pessimism about finding a uniquely best theory of law and the relationship between law and morality. (shrink)

The adversarial legal system is traditionally praised for its normative appeal: it protects individual rights; ensures an equal, impartial, and consistent application of the law; and, most importantly, its competitive structure facilitates the discovery of truth – both in terms of the facts, and in terms of the correct interpretation of the law. At the same time, legal representation is allocated as a commodity, bought and sold in the market: the more one pays, the better legal representation one gets. In (...) this article, I argue that the integration of a market in legal representation with the adversarial system undercuts the very normative justifications on which the system is based. Furthermore, I argue that there are two implicit conditions, which are currently unmet, but are required for the standard justifications to hold: that there is equality of legal representation between parties, and that each party has a sufficient level of legal representation. I, therefore, outline an ideal proposal for reform that would satisfy these conditions. (shrink)

In his _Natural Law and the Nature of Law_, Jonathan Crowe has written an important and interesting book, one that should be read by people interested in jurisprudence, ethics, and political philosophy. Its distinctive strength is in the way Crowe shows how much can be done within a natural law framework that does not assume a theological background. A distinctive feature of Crowe's approach to natural law, one that distinguishes it from other well-known approaches, is its argument that only a (...) minimal state, if any state at all, is required by or even compatible with natural law. It is this claim that I focus on in this paper. I show that these anti-state arguments do not work, and that a much more robust, largely state-like, type of political society is necessary if the requirements of natural law that Crowe accepts are to be met. In doing this, I also draw some related conclusions about the proper understanding and reach of the common good. In arguing for this conclusion I do not attack Crowe's general approach, but rather make what I hope to be an internal critique of the argument. If I am successful in this, then there will be reason for people who are sympathetic to the overall project to reject some of Crowe’s sub-conclusions, even if they wish to remain working in the natural law tradition overall. And, there will be reason to accept that something like the modern state will be necessary - at least for some time and for people like us - if we are to live good lives. (shrink)

Augustine posed two questions that go to the heart of the nature of law. Firstly, what is the difference between a kingdom and a band of robbers? Secondly, is an unjust law a law at all? These two questions force us to consider whether law is simply a means of social control, distinguished from a band of robbers only by its size, or whether law is a social institution justified by its orientation towards justice. The End of Law applies Augustine’s (...) questions to modern legal philosophy as well as offering a critical theory of natural law that draws on Augustine’s ideas. McIlroy argues that such a critical natural law theory is realistic but not cynical about law’s relationship to justice and to violence, can diagnose ways in which law becomes deformed and pathological, and indicates that law is a necessary but insufficient instrument for the pursuit of justice. Positioning an examination of Augustine’s reflections on law in the context of his broader thought, McIlroy presents an alternative approach to natural law theory, drawing from critical theory, postmodern thought, and political theologies in conversation with Augustine. (shrink)

In this article, I seek to answer the following cluster of questions: What would a characteristically African, and specifically relational, conception of a criminal trial’s final end look like? What would the Afro-relational approach prescribe for sentencing? Would its implications for this matter forcefully rival the kinds of penalties that judges in South Africa and similar jurisdictions typically mete out? After pointing out how the southern African ethic of ubuntu is well understood as a relational ethic, I draw out of (...) it a certain conception of reconciliation that I advance as a strong candidate for being the proper final end of a criminal trial. I argue that, far from requiring forgiveness, seeking reconciliation can provide strong reason to punish offenders. Specifically, a reconciliatory sentence is one that roughly has offenders reform their characters and compensate their victims in ways the offenders find burdensome, thereby disavowing the crime and tending to foster cooperation and mutual aid. I argue that this novel account of punishment is a prima facie attractive alternative to more familiar retributive and deterrence rationales, and that it entails that widespread practices such as imprisonment and mandatory minimum sentences are unjust. (shrink)

This short piece is the introduction to the Special Issue on ‘Virtue and the Law’ published by Jurisprudence in March 2019 (vol 9, issue 1). It explains the scope of the project and its place in the unfolding of virtue jurisprudence that has occurred in the past few decades, as well as introducing the topics addressed in the volume. In the first couple of pages the authors/editors outline a very brief genealogy of virtue jurisprudence and of its relation to both (...) legal theory and virtue theory. The rest of the text presents the contributions to the volume in turn, identifying some of the substantive issues addressed by each of them and their place in the investigation of the interface between virtue theory and legal theory. (shrink)

A textbook written mainly for final year law students taking Jurisprudence at an African university, but that would also be of use to those in a political philosophy course. It includes primary sources from both the Western and African philosophical traditions, and addresses these central questions: what is the nature of law?; how should judges interpret the law?; is it possible for judges to be objective when they adjudicate?; how could the law justly allocate liberty and property?; who is owed (...) duties of justice or moral treatment more generally?; who is obligated to advance justice, say, by aiding others?; how should wrongful harm be compensated?; why and when should lawbreakers be punished? (shrink)

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily (...) targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

Nir Eisikovits argues in A Theory of Truces that most contemporary conflicts wind down in a much more piecemeal fashion than our theorizing about the morality of ending wars suggests. Pauses in violence are achieved by securing agreement on narrow questions. Moreover, rather than hoping to do away with violence, theorizing would do best, he writes, to take as its starting point the fact of warfare as part of the human condition. Eisikovits aims to articulate the features of truce thinking, (...) a framework that is more descriptively accurate and normatively useful in navigating contemporary conflicts and promoting reconciliation. After summarizing his view, I argue that Eisikovits’ explanation of the contribution of truces to political reconciliation is too narrow; contrary to what he claims, truces can make an important contribution to the rule of law. I also challenge Eisikovits’ characterization of the first feature of truce thinking. I argue that while there is an important present focus on immediate benefits from temporary measures, the future looms much larger than Eisikovits recognizes. Truces matter not only for what they make possible now, but also for their ramifications for prospects for future peace. These ramifications go beyond creating conditions for hope or optimism. (shrink)

In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, how they have sustained (...) it in the face of political upheaval, and how it may be measured and developed in the future. The Rule of Law in the Real World is an essential work for scholars, students, policymakers, and anyone else who believes the rule of law is critical to the proper functioning of society. (shrink)

A commitment to the rule of law is a commitment to the governance of a society through the use of general or generalisable rules which are binding on both the subjects and the rulers. By giving due notice of the rules and of any changes to them, those who are subject to the law are protected from violence and enabled to act as agents. This is the essential contribution the rule of law makes to important human goods including freedom. Such (...) an understanding of the rule of law illuminates why the law-like character of God and the revelation of God’s law make human free will meaningful and a relationship of love between God and human beings possible. A commitment to the rule of law also means that those exercising power have to offer justifications to explain why the rules are binding, which opens up space for debate about whether the rules are just. (shrink)

The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the constitution (...) is its original meaning. That is to say: the meaning is what it is, not what it should be. Accordingly, there is no sense in which the communicated content of the constitution is determined by reference to moral desiderata; linguistic desiderata do all the work. In this article, I beg to differ. In advancing their arguments for linguistic originalism, both authors rely upon the notion of successful communications conditions. In doing so they implicitly open up the door for moral desiderata to play a role in determining the original communicated content. This undercuts their claim and changes considerably the dialectical role of linguistic originalism in the debate over constitutional interpretation. (shrink)

A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand function (...) of the market, the market mechanism of appropriation. Does this mechanism satisfy an appropriate normative principle? The standard normative juridical principle is to assign or impute legal responsibility according to de facto responsibility. It is given a historical tag of being "Lockean" but the basis is contemporary jurisprudence, not historical exegesis. Then the fundamental theorem of the property mechanism is proven which shows that if "Hume's conditions" (no transfers without consent and all contracts fulfilled) are satisfied, then the market automatically satisfies the Lockean responsibility principle, i.e., "Hume implies Locke." As a major application, the results in their contrapositive form, "Not Locke implies Not Hume," are applied to a market economy based on the employment contract. It is shown the production based on the employment contract violates the Lockean principle (all who work in an employment enterprise are de facto responsible for the positive and negative results) and thus Hume's conditions must also be violated in the marketplace (de facto responsible human action cannot be transferred from one person to another—as is readily recognized when and employer and employee together commit a crime). (shrink)

This paper develops a retributivist argument for leniency in punishment. It argues that even retributivists who defend desert-based punishment have a reason, internal to their view, to prefer more lenient over more severe punishments when there are doubts concerning how much punishment an offender deserves. This is because retributivists should take an asymmetrical view to underpunishment and overpunishment, and because the likelihood of overpunishment goes up with the severity of punishment. The radicalness of the ensuing leniency depends on the strength (...) of the asymmetry in value between underpunishment and overpunishment. (shrink)

Fifty years ago this year a legal practitioner turned military intelligencer turned philosopher, Herbert Hart, published The Concept of Law, still deservedly best-seller in thought about law. It presents law, especially common law and constitutionally ordered systems such as ours, as a social reality which results from the sharing of ideas and making of decisions that, for good or evil, establish rules of law which are what they are, whether just or unjust. But right at its centre is a chapter (...) on justice, informed by Hart’s professional knowledge of Plato and Aristotle and the tradition of civilized thought about justice, thought which he sums up like this: “the general principle latent in [the] diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality.” “Hence”, he goes on, “[the] leading precept [of justice] is often formulated as ‘Treat like cases alike’; though we need to add … ‘and treat different cases differently’”. This article will say something about three aspects of this vast topic: (i) about the factual basis and normative grounds of equality; (ii) about the proposed principle of equal concern; and (iii) about laws and social policies that pursue equality by selective prohibition of direct and indirect discrimination, and of harassment or vilification, victimisation and offence. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD's primary norm. Yet, while the CHD may at times further court integrity, it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims (...) on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: both are doctrines of standing that deflate the illocutionary force (and not the truth-value) of normative speech acts directed against wrongdoers by those guilty of similar or connected wrongdoing. The CHD also exhibits retributive logic: it sanctions plaintiffs by reason of their wrongdoing and manifests the retributive principle that “punishment must fit the crime.” -/- Copyright © Cambridge University Press 2011. Also available at http://journals.cambridge.org/action/displayJournal?jid=LEG. (shrink)

According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...) contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)

Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan's recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I (...) review Buchanan's new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to Buchanan's argument that the philosophy of international law must be more empirically informed than it has been so far, and also to his claim that greater emphasis must be placed on the role of institutions. While these are important claims, I show that Buchanan often does not take the first far enough, and that appealing to institutions cannot do as much as Buchanan hopes or needs if his substantive conclusions are to be correct. (shrink)

Machine generated contents note: 1. Revitalizing natural law; 2. Legal positivism, censorial jurisprudence, and legal reform; 3. Critical legal studies - the missing years; 4. Reconstructing normative jurisprudence.

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (...) doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm—the essence of the negligence standard—; and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try. The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try—searching for the responsibility-component in the negligence standard—I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try. (shrink)

This is Re'em Segev's contribution to the symposium on Douglas Husak's book "Overcriminalization.".

Ronald Dworkin’s ‘right answer thesis’ states that there are objectively right answers to most legal cases, even in hard cases where there is deep and intractable disagreement over what the law requires. Dworkin also believes that when deciding cases in law judges and lawyers must necessarily take moral considerations into account. This is problematic, however, for if moral considerations come into play when legal decisions are made, then there can only be a single right answer as a matter of law (...) if there is a single right answer to the relevant moral question; Dworkin’s right answer thesis implies that morality is objective. Arguing against Brian Leiter’s claim that the only plausible conception of objective truth in ‘evaluative’ domains is one modeled on the conception operative in ‘hard’ domains such as science. The following paper will show that this scientific understanding of objectivity is inappropriate for evaluative domains such as morality and law. I demonstrate that, contrary to people like Leiter and John Mackie, this conclusion does not preclude the possibility of objective moral truth. I argue that the conception of objectivity that Dworkin believes is appropriate for domains such as morality and law is a legitimate one, and also that it is one we ought to embrace so that we may indeed speak of objectively ‘right’ answers to legal cases, so that the possibility of law itself is not compromised, and so the state’s authority is made legitimate. (shrink)

In this article, I seek to make sense of the oft-invoked idea of 'public emergency' and of some of its (supposedly) radical moral implications. I challenge controversial claims by Tom Sorell, Michael Walzer, and Giorgio Agamben, and argue for a more discriminating understanding of the category and its moral force.

In this paper, I consider Ripstein and Dan-Cohen's critiques of the 'harm principle'. Ripstein and Dan-Cohen have asserted that the harm principle should be jettisoned, because it allegedly fails to provide a rationale for criminalising certain harmless wrongs that ought to be criminalised. They argue that Kant's second formulation of the categorical imperative and his concept of 'external freedom' are better equipped for ensuring that criminalisation decisions meet the requirements of fairness. Per contra, I assert that Kant's deontological theory is (...) about identifying morally wrongful and rightful conduct: it does not tell the legislature which of those wrongs justify a criminal law response in accordance with the requirements of fairness and justice. Some wrongdoers deserve censure and the stigma that results from criminalisation, but others do not. Kant's deontological theory does not limit the scope of the criminal law merely to those wrongs that deserve a criminal law response. Fair and principled criminalisation requires more than mere wrongdoing. I assert that it is only fair to criminalise wrongs when further normative reasons can be invoked to justify the use of the criminal law as a means for deterring the unwanted conduct. While 'harm to others' is not the only normative reason that can be used to demonstrate that it is fair to criminalise a given act, it is the justification that has the greatest reach. It would not be fair to criminalise mere wrongdoing (that is, every violation of freedom: trespass to goods etc. or every violation of the categorical imperative: every false promise etc.). Nor is it possible to distinguish one violation of freedom from the next, as freedom is not measurable. Thus, murder and trespass to goods would be equally wrong and equally criminalisable in Kant's scheme. A further problem with Dan-Cohen's use of the second formulation of Kant's categorical imperative is that it aims to be an inclusive criterion for identifying conduct that is prima facie criminalisable, but this inclusive approach does not explain the wrongfulness (or in Dan-Cohen's use of the categorical imperative the criminalisableness) of harming animals. In this paper, I demonstrate that the harm principle is able to meet the challenges raised by Ripstein and Dan-Cohen. I also demonstrate that it offers superior criteria for ensuring that criminalisation decisions are fair, just and principled than is offered by Kant's deontological theory. (shrink)

One of the central normative questions regards a decision between conflicting moral values. A decision of this nature is often required in disciplines such as philosophy, economics and law. According to common terminology, a decision between conflicting values reflects a balance of values, considerations or interests. Several types of questions arise in this context. One category includes substantive questions: which values exist, which considerations should be derived from these values, what is the degree of importance of these considerations, and which (...) principles should be established for deciding between conflicting considerations? Another category includes institutional questions: which individual or body should decide normative questions, and should the normative nature of the decision be manifest or concealed? This paper is an abstract of a book that considers general aspects concerning these questions. (shrink)

The article is intended to, in Sections I and II, flesh out and put within a metaphilosophical framework the theoretical argument first made in 2002 in “Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Questions” (Sexuality & Culture 6(4): 73–100), with some modifications (See note 14). Where there are differences, I stand by this version as the final version of the argument. Section III addresses three experimental or empirical studies which might be thought to contradict (...) or confirm the data of the 2002 study. Section IV compares what we have done with the one other jurisprudential argument made by Summer 2005. Section V discusses why, despite the evidence and the arguments, these sting operations are popular with prosecutors and the public alike. Section VI comments on why my empirical study dating to 2002 does not appear to have gained wide acceptance, and what, if anything, can be said about this. -/- Note: The unusual length (for me) of the article is justified by its being data-driven. (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to (...) pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email support@ssrn.com or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

Judges and lawyers believe that international law, customary law, and legal systems such as the Third Reich or apartheid law in South Africa are law. But how do we explain the fact that there is one concept of law when there are different conceptions of law with a variety of different features? Finnis, inspired by the Aristotelian notion of central case, adumbrates the idea that the concept of law might be unified by a primary concept which is the concept of (...) “law as practical reason”; that is, law conceived from an ethical perspective. He advances two arguments to defend his methodology: the conceptual and the functional. Contra Finnis, the paper shows that neither the conceptual nor the functional argument can successfully support the view that “law as practical reason” is the central case of the concept of law. The study clarifies the Aristotelian notion of central case and illustrates the mistaken application of this notion to the concept of law. However, we also argue that Finnis's insight–the idea that all the different conceptions of law might be unified for the purposes of theoretical research–is fundamental and appealing. This paper aims to reconstruct Finnis's insight through the model of core resemblance. The result is that the different conceptions of law can be unified by resemblance to the concept of “law as practical reason,” though there is no identity among the different conceptions of law. (shrink)

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not (...) at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations. (shrink)

Two methodological claims in Hart's TheConceptofLaw have produced perplexity: that it is a book on 1 and that it may also be regarded as an essay in 2 Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The (...) answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time. (shrink)

This paper presents an argument for the democratic (or 'labor-managed') firm based on ordinary jurisprudence. The standard principle of responsibility in jurisprudence ('Assign legal responsibility in accordance with de facto responsibility') implies that the people working in a firm should legally appropriate the assets and liabilities produced in the firm (the positive and negative fruits of their labor). This appropriation is normally violated due to the employment or self-rental contract. However, we present an inalienable rights argument that descends from the (...) Reformation and Enlightenment which argues that the self-rental contract, like the self-sale or voluntary slavery contract, is inherently invalid. The key intuition of the inalienable rights theory is that one cannot in fact voluntarily transfer de facto responsibility for one's actions to another person. One can only voluntarily co-operate with another person, but then one is de facto jointly responsible for the results. Just as the legal authorities legally reconstruct the criminous employer and employee as a partnership with shared responsibility, so justice demands that every firm be legally reconstructed as a partnership of all who work (working employers and employees) in the enterprise, i.e., as a democratic firm. (shrink)

Retributivism is regarded by many as an attractive theory of punishment. Its primary assumption is that persons are morally responsible agents, and it demands that the social practices of punishment acknowledge that agency. But others have criticized retributivism as being barbaric, claiming that the theory is nothing more than a rationalization for revenge that fails to offer a compelling non-consequentialist justification for the infliction of harm. Much of the contemporary philosophical literature on retributivism has attempted to meet this criticism. One (...) common move has been to recast retributivism within the social contractarian tradition. The argument is that the justification for retributive punishment flows naturally from social contractarian political theories. Thus, not only is it reasonable to claim that wrongdoers merit punishment independent of any consequentialist concerns, but that fairness requires retributive punishment. While allying retributivism with social contractarianism provides retributivism with a nonconsequentialist justification for punishment (one fuller and less problematic than the conception of "desert" that worries the critics of retributivism), I will argue that far from strengthening the justification of retributivism, social contractarianism weakens it. For this version of the theory invites the Marxist charge that our society is ordered by profoundly unfair political and social institutions, and that to justify punishing the criminals disadvantaged by such institutions with the claim that fairness requires their punishment approaches a cruel joke. Some have defended the contractarian-based theory of retributivism against the Marxist criticism by claiming that it does not require the punishment of such individuals precisely because social relations are unfair. I will conclude in this paper that although such a move is appealing, it is untenable. And if such a move is not open to the retributivist, she is now in the uncomfortable position of either turning a blind eye to the injustices by which many criminals are victimized or abandoning her retributivist intuitions (the very intuitions that drove her to social contractarianism to bolster her theory of retributivism in the first place). I will conclude that attempts to bolster retributivism by appeal to social contractarianism should be abandoned and retributivists ought instead to seek to develop their theory of punishment within an alternative type of political theory. (shrink)

The Pleadings Game is a normative formalization and computational model of civil pleading, founded in Roberty Alexy''s discourse theory of legal argumentation. The consequences of arguments and counterarguments are modelled using Geffner and Pearl''s nonmonotonic logic,conditional entailment. Discourse in focussed using the concepts of issue and relevance. Conflicts between arguments can be resolved by arguing about the validity and priority of rules, at any level. The computational model is fully implemented and has been tested using examples from Article Nine of (...) the Uniform Commercial Code. (shrink)

Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...) conclusion only depends on the premises, and is independent of the argument that leads to the conclusion.This paper opposes the logical approach, and defends a procedural approach to legal reasoning. Legal conclusions are not true or false independent of the reasoning process that ended in these conclusions. In critical cases this reasoning process consists of an adversarial procedure in which several parties are involved. The course of the argument determines whether the conclusion is true or false. The phenomenon of hard cases is used to demonstrate this essential procedural nature of legal reasoning. (shrink)

In this article, Ms. Krieger explores the controversy concerning pregnancy disability leave presented by the case of California Federal Savings v. Guerra in light of Thomas Kuhn's model of scientific paradigm change and Carol Gilligan's theory regarding sex differences in moral reasoning. She argues that the controversy reflects a period of paradigm crisis in equality jurisprudence, brought about in part by the recent inclusion of greater numbers of women into the jurisprudential community.

...Witherspoon's Course in Political Theory, as Taken by James Madison Dennis F. Thompson Princeton University [523...Witherspoon's Course in Political Theory, as Taken by James Madison. James Madison was an unusually wen-prepared student when, at eighteen...