Category Archives: Jurisprudence
Dec 20, 2013 Sean CoyleJurisprudence
The image of natural law to the modern mind is one in which certain actions, states-of-affairs, and “values,” are represented as being right or wrong, reasonable or unreasonable, depending upon whether they can claim to be in accord with or contrary to nature. Though apparently hard to shift, this image, as John Finnis and others have pointed out on numerous occasions, is misconceived: the orientation of thinking running rather from what is reasonable and right to what is (therefore) in accord with nature.
The matter is dealt with in some detail in the second chapter of Natural Law and Natural Rights, and the rest of that book constitutes an example precisely of arguments of practical reasonableness (a reworking of Aquinas’s prudentia) as the ground of a theory of “natural law” (i.e. a fully critical basis for evaluation of human acts and institutions, and the subject-matter of the social sciences). It is taken up again, in much greater detail, in Finnis’s book on Aquinas, in the context of Aquinas’s own account (itself quite clear on this point) of human choosing and deliberating. The present essay situates the discussion within a much broader historical context, ranging from the treatment of “nature” in Platonic and Sophist philosophy through to the positivism of Hart and Austin. Just as the idea of “natural law” must be logically separated from the beliefs and opinions of those who assert its existence (only the latter having a temporality and history), so the skeptical, nihilist or agnostic assertion that there is no moral law, but only the satisfactions of “animal” nature (subrational emotions, desires to which reason is the ingenious servant), represents a single permanent idea which plays out in numerous different forms in different times and places. How could it be otherwise? For the skepticism is directed precisely at reason’s governance, its ability to identify and work its way towards those human goods that stand at the center of natural law thinking. In one long argument, the essay unpicks, steadily and relentlessly, the confusions that underpin the strand of skeptical thinking that unites the Sophists’ outlook to Hart’s own commitment to legal positivism. Continue reading "Natural Law and Its History"
Oct 21, 2013 Ekow YankahJurisprudence
James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).
We live in a liberal age, philosophically speaking. One may argue about what variant of liberalism is most persuasive but, on the whole, most theories of law or politics do not seriously question a slate of liberal doctrines, most especially the primacy of individual autonomy, the commitment to “negative liberty” and thus the limitation of state coercion by the harm principle. Perhaps it is an inevitable sign of the dominance of liberalism that a number of scholars have started to more acutely feel its shortcomings more acutely. Thus liberalism is accused by some of being too thick, requiring commitment to a comprehensive world-view that makes individual liberty primary and excluding those who do not take controversial issues of law and politics to be decided by individual rights. Gaining more momentum perhaps, are those who find liberalism too thin, arguing that the hegemony of individual rights leads our legal system to pay insufficient attention to the encouragement and enforcement of the duties of citizenship, civic virtue and morally valuable forms of life of both citizens and communities that cannot flourish without collective political support.
In the face of this increasingly strenuous criticism from both sides steps in Fleming and McClain’s Ordered Liberty: Rights, Responsibilities, and Virtues. Fleming and McClain take up a rather ambitious task. They seek to reform and/or illustrate, in turns, that liberalism of a certain type, their “Constitutional Liberalism,” can meet the challenges leveled at liberalism. The text places itself firmly in that intersection of law, feminism, constitutional theory and political theory. For those interested in purely philosophical discussion of liberalism, the book may seem to only weave in and out of important conversations. That said, it does engage with important and popular contemporary philosophical and theoretical positions in the liberalism literature on liberalism, from Michael Sandel on one side to Cass Sunstein on another. Continue reading "Liberalism Revisited"
Sep 18, 2013 Daria RoithmayrJurisprudence
I’ve been the first Latina hired in a number of institutions, and on most occasions, those institutions have proudly and visibly trumpeted my hiring, in institutional media and outside as well. I’m well aware that my identity (if not my name) plus my hiring has accorded value to the institution. I’m also aware that in at least one institution, my hiring was an instance of what race scholar Nancy Leong calls “thin diversity,” but what I call fake diversity: signaling a commitment to racial diversity that didn’t really exist. Was I harmed (or was the public harmed) by this fake signal? Perhaps. But I like to think that I earned compensation, in the form of a job, and that the public benefited, because I might have helped to transform the institution in a real way despite the fake signal at the outset. All in all, I think a fair trade.
I was very excited to read Nancy Leong’s article, Racial Capitalism, and then to read Stacy Hawkins’ reply to Leong, Selling Diversity Short. These two scholars are welcome additions to the conversation about affirmative action, fresh voices in what can sometimes be a conversation that has become a bit tired and played out. Thanks to the wonders of electronic publishing, I might actually have read the critique before reading the actual article. Hawkins’ critique came out online in 2012 and Leong’s article in 2013. But in whatever order I read them, the back and forth among these scholars was terrific. Continue reading "Faking It"
Sep 3, 2013 Robin KarJurisprudence
Although Margaret Jane Radin is perhaps best known for her work in property theory, she has recently been focusing her formidable intellect on questions of contract. Boilerplate reflects her first book length treatment of these topics, and there is much to like about this book. Here I will focus on one contribution that the book makes to normative jurisprudence, which is to clarify the centrality, pervasiveness (and perhaps even inescapability) of a specific problem for modern contract theory. The problem involves what I like to call a generalized lack of theory-to-world fit: if Radin’s arguments are valid, then a very broad range of modern contract theories are addressing the wrong subject matter, given the way that contracts increasingly work in the modern world.
That some market practices pose special problems for some theories of contract is, of course, no big secret. Rarely, however, is it acknowledged just what a general threat some prevalent practices pose to modern contract theory as a whole. For that defect, Boilerplate provides a timely and incisive cure. Continue reading "The Challenge of Boilerplate"
Aug 6, 2013 Barbara LevenbookJurisprudence
Re’em Segev, Justification Under Uncertainty, 31 Law and Philosophy 523 (September 2012), available at SSRN.
In this article, Segev defends a sophisticated analysis of the pro-tanto justification of actions taken under uncertainty (more precisely, with “partial information”) in both morality and law. Applied to law, Segev’s analysis challenges some mainstream views.
Here’s the puzzle and Segev’s starting point: Thanks to mistake of fact, an action may appear “subjectively justified” but not “objectively justified,” and vice versa. A moral agent has a false but epistemically justified belief about a relevant non-normative fact; and if that belief had been correct, the action would have been (objectively) justified under a correct norm. Some would say that the act is subjectively justified, nonetheless. An action is objectively justified—the agent correctly acted according to a correct norm—but the action is not subjectively justified, given the agent’s epistemically justified (but false) belief about a relevant non-normative fact. In either case, was the agent’s act really justified? The answer provided by an objective conception of justification under uncertainty appears to conflict with that produced by a subjective conception. Segev denies the conflict. He holds that the question is ambiguous; its answer depends on which “aspect” of the relevant normative standard the question concerns. Continue reading "Mistake of Fact, Moral Justification, and Justificatory Defenses in Law"
Jul 22, 2013 Brian BixJurisprudence
Frederick Schauer,
On the Nature of the Nature of Law,
Archiv für Rechts- und Sozialphilosophie (ARSP), Vol. 98, pp. 457-467 (2012), available at
SSRN.
At the heart of analytical legal philosophy are theories about the nature of law. In recent decades, there has been a growing convergence around the conclusion that theories about the nature of law (like those of H.L.A. Hart and Joseph Raz) are conceptual analyses, determining the “essential” or “necessary” characteristics of the concept of law. (The debates about the proper way to understand theories about the nature of law are summarized in Brian Bix, Joseph Raz and Conceptual Analysis, APA Newsletter on Philosophy of Law, Vol. 6(2), Spring 2007, available at SSRN.) Against this background, Frederick Schauer, in a number of important recent articles, including On the Nature of the Nature of Law, has argued that legal theorists should focus more on “the typical truths” of law, even if this is different from the list of its “essential characteristics.”
To explain: the “essential” or “necessary” characteristics of law are those characteristics that make it “law,” the characteristics without which it would not be “law.” These characteristics will be present (by definition) in all legal systems, present, past, future, or hypothetical. Claims of which characteristics are “essential” or “necessary” are claims about our concepts, not (or at least not primarily) falsifiable claims about the world independent of those concepts. (The role of “necessity” in philosophy generally and in legal philosophy in particular is a large topic that would take us too far afield. I discuss the topic in Raz on Necessity, 22 Law and Philosophy 537 (2003), also available at SSRN.) Continue reading "The Nature of Law: Essential vs. Important"
Jun 7, 2013 Michael GreenJurisprudence
Karl N. Llewellyn,
The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press, 2011).
Llewellyn began this book in 1938 in response to mischaracterizations of his views about legal rules. After working on it for two years, he set it aside unfinished. Mouldering for decades among the rest of Llewellyn’s papers at the University of Chicago, it has finally been published, with a masterful introduction and set of notes by Fred Schauer. Although the book offers many valuable insights about what this prominent legal realist thought about legal rules, my emphasis here will be on how it might help put to rest two persistent misreadings of the realists.
The first is that the realists believed in global legal indeterminacy—that they thought legal rules can never (or only rarely) give judges sufficient guidance to come to a particular decision. This misreading is evident in H.L.A. Hart’s critique of “rule skepticism” in Chapter VII of The Concept of Law. The Theory of Rules is a useful corrective, for Llewellyn repeatedly insists that legal rules can, and often do, meaningfully instruct judges about how cases should be decided (e.g., Pp. 40-41, 46-47). What is more, he identifies the likely source of the mistaken view that the law is globally indeterminate—the tendency of legal scholars to concentrate on cases that make it to appellate review. (P. 47.) Here Llewellyn’s book supports Brian Leiter’s reading of the realists, for Leiter has argued tirelessly that the realists were not global legal indeterminists (e.g., Pp. 19-20 of Naturalizing Jurisprudence). Continue reading "The Real Legal Realism"
Apr 26, 2013 Robin WestJurisprudence
Matt Adler’s book Well Being and Fair Distribution is first an articulation and then a defense of a particular social welfare function with which analysts and critics, whether from academia or elsewhere, can morally assess various large scale governmental regulatory or legislative decisions, such as the decision to use public moneys to build a dam or a highway, or to discontinue funding of the Violence Against Women Act, or to re-authorize No Child Left Behind, or to regulate carbon emissions in some way, or to continue the use of drones in warfare, or to close Guantanamo Bay, or to shrink or expand the role of the federal government in the War on Drugs. The means of moral evaluation of these large governmental decisions for which Matt argues is consequentialist — it is the outcomes of choices that determine the morality of those choices, rather than any other attribute of the actions or any constellation of motives of the actors that do so –– and, second, welfarist — it evaluates those decisions by reference to their propensity to increase or diminish human wellbeing –- and, third, prioritarian – meaning that it gives priority, or greater weight, to increases in the wellbeing of the less well off, when comparing the relative moral virtues of possible policy changes. So, one policy choice is morally better than another if it increases the wellbeing of those who are affected, as measured by the utility of their alternative life histories, and as ascertained by the other-regarding ideal preferences of a sympathetic spectator, with the wellbeing of the increase to the less well off given additional weight. Thus, the title of the book: this is a defense of a consequentialist mode of evaluating decision making that centers human wellbeing and fair distribution both.
Obviously for those of us who have spent time with it, Matt’s book stands as a monumental achievement; it is philosophically and economically sophisticated, and exhibits a mastery of multiple literatures, from the analytic-philosophical work of the last three decades on identity, equality, and wellbeing, as well as a sizeable normative economic literature spanning three quarters of a century on social welfare functions and their various competitors, most significantly of course cost-benefit analysis. It is also, though, monumentally important, given the current state of normative jurisprudence, and for three reasons not made obvious by the book itself: the first, internal to utilitarian jurisprudence, the second, on debates between utilitarian and deontological theories of legal evaluation, and third, in legal scholarship more generally. I want to spell those out and then I will then raise some questions and objections about its methodology. Continue reading "Justice and Utility"
Mar 29, 2013 Cary FedermanJurisprudence
The idea of incarceration is not self evident. One can speak of prisons in ancient Greece and Egypt, as well as in medieval Europe, but the largely private nature of the prisons, the arbitrary imposition of penalties and of their length, and the lack of oversight or regard for prisoners’ welfare makes the use of the word prison seem out of place in such contexts. Besides, incarceration was not the primary method of punishment in the classical and medieval world. Banishment, shame, public displays of punishment, fines, and outright executions were regarded as better suited than prisons in making the point that crime will not be tolerated.
The modern era gave us prisons – hierarchical, rational, rule-bound bureaucratic institutions. And with it, a bargain was struck, as Sharon Dolovich writes in her fascinating account of the history and development of the idea of exclusion and control in American prisons. The bargain, according to Dolovich, involves the state’s ability to isolate those who transgress the law and then to ensure that such persons will be kept “apart from society for the duration of their sentences.” (P. 274).
The problem, Dolovich notes, involves the limits and the character of confinement. Why, in the 1990s, did the United States turn to two policy choices, life without parole (LWOP) and the Supermax? What were the evils policymakers in the 1990s were combating? Continue reading "Life in Prison"
Feb 1, 2013 Robin WestJurisprudence
In his accessible and thoroughly enjoyable book The Heuristic Debate, Mark Kelman demonstrates for the benefit, primarily, of legal scholars and policy makers, that there is not just one, but there are two challenges, or alternatives, to the economists’ rational choice model of decision making that has so influenced law and policy over the last few decades, both of which come to us from the discipline of cognitive psychology, with one of which — objections coming from the “heuristics and biases” school — lawyers are largely familiar, but the second of which – those coming from the group Kelman labels the “fast and frugal school” – we are not. But we should be. The second challenge, Kelman suggests, cuts quite a bit deeper than the first, and yields insights of relevance to both law and policy which are at right angles with those offered by rational choice theorists and the heuristics and biases school both. Mark first presents these two schools – heuristics and biases (hereinafter HB) and fast and frugal (hereinafter FF) — as participants in an intra-cognitive psychology debate, as that is how both schools originated, rather than as responses to the economists’ rational choice model of decision making, much less the latter’s deployment in law and policy. Nevertheless, and as Mark eventually argues, it’s also useful to understand both schools in their quite differing relations to the rational choice model of decision making with which they are both in conflict. (Mark calls the latter “rat choice” for purposes of brevity, but I won’t, I’ll call it RC instead.)
I’ll quickly summarize what I understand as the book’s most basic claims, then make a perhaps unwarranted inference, although I hope not, that will sharpen and recast the differences between them but also sharpen the differences of the fast and frugal school with both the heuristics and biases school and the rational choice school. My basic claim is that it is those differences, between FF on the one hand, and both RC and HB, that have the potential to reframe fundamentally the place of rational choice in our conception of law, and our understanding of alternatives to it. By contrast to those differences, and that challenge, the familiar challenges posed to RC by HB look much more like friendly amendments – provocative, thoughtful, and fun amendments, but amendments all the same. In my concluding remarks I will aim to cast somewhat differently what I take to be the most imaginative and interesting but also the weakest part of Mark’s book, to wit the discussion of Holmes and Langdell as exemplars of HB and the FF schools respectively and then finish up with some quick remarks about the role of these models of cognition in legal scholarship and legal policy debates quite generally. Continue reading "Adjudging The Heuristics Debate"
