Category Archives: Jurisprudence
Dec 10, 2012 W.A. EdmundsonJotwellJurisprudence
Stephen R. Perry,
Political Authority and Political Obligation in 2
Oxford Studies In the Philosophy of Law (Leslie Green & Brian Leiter eds., forthcoming 2012) (Univ. of Pennsylvania School of Law, Public Law Reseach Paper No. 12-37, forthcoming) available at
SSRN.
A right to rule is the mark of a legitimate state or, put differently, of legitimate political authority. The correlate of this right to rule is a general duty, borne by all within a relevant territory, to obey the law laid down by the state – all of the laws, whatever their content. The right to rule excludes any right on the part of citizens to “pick and choose” which among the laws that apply to them to obey. The duty is a defeasible one, which must yield in case the duty-bearer is so circumstanced that a great evil could be avoided only by disobeying the law’s command. But, extraordinary cases aside, the general duty prevails. Such is the traditional view that this paper wants to reorient.
One problem with the traditional view is that it encourages the assumption that there is an acid test of state legitimacy: is there or is there not a general duty to obey? The legitimacy of political authority is thus tied to the existence of a general duty that there is good reason to doubt. The general duty dignifies silly regulations and fussy requirements that it seems morally innocent to ignore. Moreover, each of the theories that have traditionally been marshaled to justify such a general duty of obedience – gratitude, consent, tacit consent, hypothetical consent, fair play, necessity, expertise, association – come up short. On the traditional view, legitimacy can be established by establishing the general duty, and it can be rejected if the general duty lacks a persuasive ground. Continue reading "Perry on Powers"
Nov 14, 2012 Sean CoyleJurisprudence
“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy. It is the object of this book to identify those goods and those requirements of practical reasonableness, and thus to show how and on what conditions such institutions are justified and the ways in which they can be (and often are) defective.” So wrote John Finnis at the outset of Natural Law and Natural Rights. We often think of Finnis as being distinctive among legal philosophers in the modern era in wishing to place this question at the very centre of jurisprudential inquiry. It is not an approach to the subject that we immediately connect, in our reflections, with the legal philosophy of that other prominent opponent of legal positivist understandings of the legal order, Lon Fuller. But as Kristen Rundle’s excellent book Forms Liberate reminds us, Fuller was unwavering in his insistence that there is something distinctive and important about legal forms, that there are aspects of the human condition, of incalculable importance to us, that can be “secured only through the institutions of human law.” At the same time, Fuller also connected this distinctiveness of form with the issue of practical deliberations, of the manifestation and respect of human agency.
The main purpose of Forms Liberate is to “reclaim” Fuller’s jurisprudential concerns from the periphery of present-day philosophical debates, and to return them to the centre of our inquiries so that they might interrogate the assumptions, both of method and of substance, that continue to structure the domain of inquiry. The title of the book comes from a working note of Fuller’s, written during the preparation of his “Reply to Critics,” in which all except those two words are scored out: “forms liberate.” Drawing heavily upon Fuller’s private papers, the book attempts to explain the significance of that image for Fuller’s project, to situate it in the context of Fuller’s thinking as a whole. Rundle suggests that Fuller never managed successfully to articulate his agenda within the much narrower context that Hart forced upon their famous exchanges, which often left Fuller bewildered: in particular, “Fuller losing himself and some of his best ideas to the challenge of understanding why Hart and others had dismissed him so harshly…” (P. 5.) Continue reading "Reclaiming Fuller"
Oct 22, 2012 Daria RoithmayrJotwellJurisprudence
Yes, yes, I know this is the Journal of Things We Like. And I like, like, like Ian Haney Lopez’s essay, “Post Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama.” But to understand why I like it so much, I have to say a word about something I also liked, but not as much as I had wanted to.
A great deal of attention has been paid to Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The attention is well deserved; Alexander is a great writer with an eye for a compelling narrative. But truth be told, I was left feeling a bit dissatisfied when I finished reading. How does the New Jim Crow racism actually work, structurally speaking, when it comes to mass incarceration? Is subconscious bias (by police) and naked political gain (by the architects of the war on drugs) really the entire story? Isn’t there a deeper, more coherent structural story to tell here with regard to cause? Continue reading "Prisons, Poverty And Power"
Sep 24, 2012 Michael GreenJotwellJurisprudence
Caleb Nelson,
A Critical Guide to Erie Railroad Co. v. Tompkins, 54
Wm. & Mary L. Rev. (forthcoming 2013)
available at SSRN.
Philosophy of law can get lonely. Most law professors, not to mention lawyers, don’t care whether legal positivism or some kind of anti-positivist alternative is correct. It is surprising, therefore, that philosophers of law so rarely discuss Erie Railroad Co. v. Tompkins, since Erie suggests that the philosophy of law can be relevant to legal practice.
Legal positivism is identified, in part, by the social fact thesis: the law of a jurisdiction is fundamentally a matter of social facts concerning officials (or the general population) within the jurisdiction. In his opinion in Erie, Justice Brandeis rejected the regime of Swift v. Tyson, in part, because he thought Swift was incompatible with this thesis. In Swift, Justice Story opined about the common law prevailing in New York without deferring to the decisions of New York state courts. That sounds anti-positivist. Story apparently understood the common law to be binding in New York independently of social facts about New York (or, indeed, any other jurisdiction’s) officials. Continue reading "Erie, Swift, and Legal Positivism"
Aug 9, 2012 Brian TamanahaJotwellJurisprudence
A number of prominent contemporary legal philosophers identify as their central task the search for the necessary features of the nature of law. Joseph Raz writes, “The general theory of law is universal for it consists of claims about the nature of law, and about all legal systems, and about the nature of adjudication, legislation, and legal reasoning, wherever they may be and whatever they might be. Moreover, its claims, if true, are necessarily true.”. Scott Shapiro’s Legality is an extended treatment of the nature of law: “When asking about the nature of law…we want to know which properties law necessarily possess in virtue of being an instance of law[.]”.
Along similar lines, Julie Dickson insists that a general theory of law must “consist of propositions about the law which are necessarily true, as opposed to merely contingently, true,” because “only necessarily true propositions about law will be capable of explaining the nature of law.”. This search for the nature of law is not limited to legal positivists. Anti-positivist Robert Alexy pursues the same project (though contesting their answers): “Thus, for the question, ‘What is the nature of law?’ one may substitute the question “What are the necessary properties of law?”….Essential or necessary properties of law are those properties without which law would not be law.”.
The most puzzling aspect of this project is not the answers these various theorists produce in the pursuit of their quest but the assumption upon which it hinges: that law has a nature. Prior to embarking on a search for the nature of law one would think that the first order of business is to set forth an argument establishing that law has a nature. Without such an account, it is unclear what is being sought or whether there is something to be found. Despite the apparent necessity to tackle this preliminary question, theorists who pursue this aim have heretofore largely assumed it.. Continue reading "The Mounting Challenge to Assertions About “The Nature of Law”"
Jul 17, 2012 A Michael FroomkinJurisprudence
This is the site of the forthcoming Jotwell International Law Section.
We plan to go live soon and will run an announcement at Jotwell main page when this section starts regular publication.
Jun 21, 2012 Cary FedermanJotwellJurisprudence
The law, Stanley Fish has written, “wishes to have a formal existence.” . By formal, Fish meant self-contained, autonomous, and self-declaring. In other words, the law wants to deny license to the interpreters of the law to seek recourse outside the law, to the tenets of philosophy and psychology, and to the facts of social scientific research. Of course, the law does not, because it cannot, succeed in preventing lawyers, or those from other disciplines, from rendering judgments about psychological processes or behavior. Tort law relies on economics and economics relies either on moral philosophy or psychology to ground its understanding of human behavior. The same is true for criminal law, and it is especially true in insanity cases. What the law wants – if it is acceptable to speak of the law without subjects but with intent – is to control the production of legal meaning.
Janice Nadler and Mary Hunter-McDonnell have written a provocative and insightful essay that explores the limits of the law’s formalism by focusing on how non-lawyers actually perceive guilt and assign blame. They are less interested in saying that certain people, contrary to the law’s instructions in criminal trials, combine assessments of guilt with perceptions of bad character. Rather, they say that to be in a position of judgment over another requires that one’s mental processes leap over the law’s formalism and merge guilt with character assessment. Indeed, they go further and suggest that any character information that jurors have which they perceive to be negative influences the corresponding interpretation of the action under review. If these studies can be replicated over time (and Nadler and McDonnell cite other literature to this effect), then policymakers need to address the implications of this study. Continue reading "Judging Guilt by the Content of their Character"
May 18, 2012 Shubha GhoshJotwellJurisprudence
Many readers are aware of the field of law and behavioral economics, which adopts insights from cognitive psychology to examine and critique prescriptions of rational choice theory for law and policy. For those seeking a wider understanding of the background, cognitive psychology scholarship has an excellent resource in Professor Mark Kelman’s new book. As its title suggests, the book synthesizes academic research on the use of heuristics in individual decision making. Here, I summarize the book, putting out tantalizing teasers to encourage you to read this important volume as well laying out some of its implications for jurisprudence and legal policy.
In addition to the book, I recommend the Stanford Law School symposium devoted to Professor Kelman’s book that you can watch on YouTube after a judicious search of “heuristics debate Stanford.” But it would be an error to take a short cut and not read the book as well. Continue reading "Rationalizing Heuristics"
Apr 4, 2012 Dennis PattersonJotwellJurisprudence
Jan Smits, “A Radical View of Legal Pluralism” in Leone Niglia, ed,
Pluralism and European Private Law (Oxford, 2012), available on
SSRN.
Legal Pluralism is both a phenomenon and a response to that phenomenon. We live in a world with a plurality of legal orders. There are municipal legal systems and international law. These are the most familiar forms of law, the most comfortable types of legal orders. Then there are international or “supranational” legal orders like the European Union. Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).
Jan Smits has been writing about legal pluralism for some time. His work is always interesting. This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered. Continue reading "Pluralism Reimagined"
Feb 22, 2012 Brian BixJotwellJurisprudence
A number of prominent legal positivists in recent years (including Jules Coleman and Scott Shapiro) have taken it as an urgent project – and have taken it as their project – to “explain law’s normativity.” By that, they report that what needs to be explained is the way that law gives us reasons for action. There is always something a little ironic when legal positivists try to explain the normativity of law, for it is generally considered to be foundational to that approach to law that it denies any necessary moral content to legal systems in general or valid legal norms in particular.
In “Reason-Giving and the Law,” David Enoch has worked as much to “deflate” the problem of law’s reason-giving as to resolve it. His basic point is that there is nothing that remarkable about the giving of reasons for action. Continue reading "On (Not) Explaining Law’s Reason-Giving Power"
