Category Archives: Jurisprudence
Jan 20, 2012 W.A. EdmundsonJotwellJurisprudence
Law is related both to morality and to convention. Differently related, surely. But how, exactly? That should be easier to explain if we could say how morality and convention are related to each other. But how easy is that?
Even as children, almost all of us understand the difference between saying that something is wrong, and saying that something “just isn’t done around here.” We would say that rape is wrong no matter how commonly it occurs; but we wouldn’t say that passing the decanter of port to the right was wrong even if we found out that, where we happened to be, doing so breaches a hallowed custom. Not wrong, strictly speaking, anyway, if we mean morally wrong. We all understand the difference, at least until we’re asked to explain it. (“And which kind are legal judgments?” –one might wonder: see answer below.) Continue reading "Law in the Neighborhood of Morality and Convention"
Nov 30, 2011 Sean CoyleJurisprudence
Martha Albertson Fineman,
The Vulnerable Subject and the Responsive State, 60
Emory L. J. 251 (2010), available at
SSRN.
Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.
Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs. Continue reading "The Human Condition And the Liberal Order"
Nov 18, 2011 Mortimer SellersJurisprudence
Robin West’s new book on “normative jurisprudence” should have an immense and lasting effect on American discourse about the law. This volume should be important for two reasons and in two senses of the word should: first, because Professor West has great authority in the American legal academy as an early and much-admired proponent of feminist jurisprudence, law and literature, and critical legal studies; and second, because she is in this volume on almost every point and in almost every way correct about the purpose, value, and nature of jurisprudence and the law.
I distinguish two senses of the word “should” in this way because the central argument West makes is that although both the “is” (predictions about existing power and authority) and the “ought” (justice) matter in understanding the path of American jurisprudence, the latter is more important, and much overlooked. West calls for a renewed “normative jurisprudence”, by which she means a jurisprudence dedicated to studying not primarily what the law is, but what it ought to be — how to make the law more just. Continue reading "The Province of Jurisprudence Determined"
Oct 14, 2011 Daria RoithmayrJurisprudence
Last fall, the New York Times reported that in the halls of academia, studying culture was no longer, like Lord Voldemort, “that which must not be named.” Culture was officially back on the poverty research agenda. According to the story, much of this newfound respectability had come courtesy of William Julius Wilson, the Harvard scholar who has long argued on both culture and structure fronts. In 2009, Wilson published a book, More Than Just Race, in which he marshaled the best of sociological research to argue that both structural barriers and cultural impediments keep poor people of color trapped in poverty. In the end, Wilson concluded that the structures of racism and the globalizing economy matter far more than the cultural behavior that conservatives love to blame. But in the essay that this review focuses on, Wilson focuses less on which trumps which. Instead, he makes a strong case for a “unified framework” to integrate both structure and culture.
If I might put the argument in a stylized form, Wilson shows in essence that structure and culture are related to each other in a positive feedback loop, in which structure shapes culture, and culture in turn shapes and contributes to structure. So for example, Wilson points out the way in which segregation and a globalizing economy produce informal illegal economies, in which the “code of the street” and distrust of the police become commonplace cultural norms as rational responses to illegality and isolation. These codes of the street and their accompanying frameworks of meaning—distrust of the police, for example–contribute in turn to the perpetuation of segregation and diminished access to jobs. And the cycle goes round and round. In integrating structure and culture into one analytical framework, Wilson continues to make a strong case (as he has for twenty years) that the study of culture should enjoy full respectability in the academy. It seems left academics are finally listening. Continue reading "Structure and/or Culture"
Sep 12, 2011 Mark GreenbergJurisprudence
Scott J. Shapiro,
Legality (Belknap Press 2011).
Scott Shapiro’s splendid new book offers a novel theory of the nature of law: legal systems are essentially systems for complex, impersonal social planning, and legal norms are plans. The book provides a new perspective on law, which is both refreshing and fruitful. By thinking about the origins, purposes, and essential features of plans, we gain insight into law. A significant side benefit is that the book connects law to topics in contemporary philosophy of action.
Legality has more virtues than I can discuss here. To begin with, although the book is a highly original contribution to the philosophy of law, it presupposes relatively little background. It is also extremely clearly and engagingly written. The book would therefore make a superb text for a law school, advanced undergraduate, or graduate course. And, because Shapiro frames the issues in new ways, even those portions of the book that introduce and discuss familiar positions and issues provide much food for thought for specialists as well as the more general reader. Continue reading "Law Through the Prism of Planning"
Sep 12, 2011 Ekow YankahJurisprudence
Scott J. Shapiro,
Legality (Belknap Press 2011).
Analytical jurisprudence has a peculiar status in American law schools to say nothing of philosophy departments. Most law professors find it an utterly inscrutable or arid project. More generous souls have the vague impression that it is important and like that one or two of their colleagues engage in it, but their gentle forbearance is not to be mistaken for interest. Even those steeped in the subject are often discouraged by the increasing narrowness of the “What is Law” question. It takes a good deal of squinting to see the live question surrounding the nuanced positions on the extent to which morality determines whether something can be considered law; that is, the “validity conditions of a legal system.”
Against this rather gloomy landscape, Scott Shapiro has introduced an illuminating new book, Legality. Though there are few who are as knowledgeable about analytical jurisprudence as Shapiro, his book is admirable not for its attempt to dazzle with intricacies. Rather, Shapiro’s work is laudable because it makes accessible decades of debate in modern jurisprudence while still providing a novel contribution. Most importantly, Shapiro revives the heartbeat of the debate, showing why it matters and synchronizing it with legal issues recognizable to those outside of the small world of analytical jurisprudence. This accessibility means that those who know this debate will find the preliminaries unnecessarily long, a quarter of an already rather long book. Yet, it is no small thing that Shapiro manages to explain half a century of thick debate in a way that interested audiences of lawyers, and perhaps more immediately relevant, undergraduates and law students can understand its contours. Speaking for the many professors who have shied away from teaching the subject, Shapiro’s book makes one reconsider the profitability of reintroducing this debate in the classroom. Continue reading "Planning Ahead! (in Jurisprudence)"
Aug 1, 2011 Connie RosatiJurisprudence
What does sport have to do with jurisprudence? Not a great deal, one might think. To be sure, particular sports, like legal systems, are rule-governed practices. This commonality and the relative simplicity of sports makes them useful as a source of examples that might be deployed to explain more complex legal-theoretical ideas.
Philosophers of law and legal theorists commonly use sports examples in just this way. Most famously, H.L.A. Hart used examples from games and sport both in criticizing other views about the nature of law and in clarifying his own distinctive view. In his critique of Austin’s command theory of law, for example, Hart invoked the scoring rules of a game as he explained why nullification under the power-conferring rules common to modern legal systems cannot be assimilated to sanctions under duty-imposing rules. (H. L. A. Hart, The Concept of Law). And he adverted to chess and cricket to explain one of his most distinctive theses—that rules, and so law, have an “internal aspect.” Chess players, he observed, do not merely have “habits of moving the Queen in the same way,” which an external observer might record. In addition, “they have a reflective critical attitude to this pattern of behavior: they regard it as a standard for all who play the game.” Continue reading "Playing by the Rules"
Jun 30, 2011 Michael GreenJurisprudence
Although this article appears to be about the permissibility of aggressive anticrime measures, it really concerns particularism in ethical theory.
Three strikes laws, zero tolerance policies, and the like have been criticized for violating nonconsequentialist restrictions on punishment. According to this criticism, when the state sentences a former felon to 25 years in prison for stealing three golf clubs, see Ewing v. California, it acts improperly because it imposes a sentence more severe than the defendant deserves for the crimes he has committed. That such a restriction on punishment exists, it is claimed, can be shown by considering telishment (short for “teleological punishment”), in which the government intentionally punishes someone it knows to be innocent because crime will thereby be prevented. Although telishment would, ex hypothesi, have good consequences, it is nevertheless wrong. And so–-proceeding according to what Brand-Ballard calls a generalization argument–-punishment under three strikes laws must also be wrong, for it shares all morally relevant intrinsic features with telishment. Both, after all, impose a quantum of undeserved harm. Continue reading "Particularism, Telishment, and Three Strikes Laws"
Apr 27, 2011 Brian BixJurisprudence
In this brief companion piece to his longer work, “The Correspondence of Contract and Promise,” Jody Kraus displays how a “personal sovereignty” account of individual autonomy can explain the ability of individuals to impose moral obligations on themselves.
Contract Theory has become increasingly focused on the related issues of the philosophical foundations of promising, and the relationship between promise and contract. As Kraus points out in his longer Columbia Law Review piece (“Correspondence”), one cannot reach any conclusions about whether contract law deviates from the morality of promising until one determines the source and extent of the moral obligation of promising.
One view in the area has been that the normative force of promises comes from the social practices and conventions which a community established to make an act of promising sufficient to impose an obligation on the promisor. Kraus notes that Joseph Raz appears to argue that individuals have the power to create normative obligations through promising, because it would be valuable for them to be able to do so. (128) As Kraus discusses in “Personal Sovereignty,” views like these have elicited the skeptical response that one cannot simply create a moral obligation out of thin air. For these skeptics, neither the presence of a social practice or convention nor the claim that the ability to be able to bind oneself would be a good thing, could be sufficient to allow individuals to create new obligations in this way. The skeptics continue, whether a promise creates an obligation depends on some other more basic axiom of moral philosophy (e.g., for the consequentialist, whether keeping this promise will increase overall social utility). Continue reading "Creating Norms"
Mar 21, 2011 Dennis PattersonJurisprudence
Globalization has produced transnational legal phenomena in need of theorizing. From this observation flow several questions about transnational legal phenomena such as private legal orders (e.g., ICANN, UDRP, Bernstein (1992) on diamonds), federal norms (e.g., EU law), international law that is not the product of treaties (e.g., lex mercatoria or the norms produced by the WTO appellate body), soft law and international arbitration (ADR). How should legal theorists make sense of these disparate yet related phenomena?
If we are to theorize these phenomena, what form should such theorizing take? This is the question taken up by Calliess and Renner. As they see it, the answer to the question of “global governance” is a mixture or blend of legal theory/jurisprudence and social science (here law and social norms). Each approach asks a different question. From the point of view of legal theory, the question is “analytical” (their word): how to differentiate legal from non-legal norms? Thus stated, the question is familiar to analytically minded legal theorists. The second dimension is advanced in the form of a challenge, which they state thus: “[T]he most pressing demand on contemporary jurisprudence is to make legal concepts compatible with those of the social sciences without at the same time losing sight of the very own purpose of legal thinking, i.e., the normative analysis of legal structures.” (p. 262) Continue reading "Transnational Law"
