Category Archives: Jurisprudence
Feb 14, 2011 Martin KrygierJurisprudence
Stephen Holmes,
In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror,
97 Calif. L. Rev. 301 (2009), available at
SSRN.
Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good, less for what it enables and creates than for what it might prevent. On this interpretation, the point of law is to block and limit the possibility of unruly power, to curb and restrain power’s exercise. This is not a new view. Recall Bracton’s revealing metaphor from the thirteenth century, of law as ‘the bridle of power,’ by which a just king, as distinct from a ‘tyrant,’ must ‘temper his power.’ The characteristics most associated with law changed over the centuries, particularly moving from custom to legislation, and with those changes went different conceptions of what the law needed to be like to do its proper work. However, the identification of the rule of law’s purpose with constraint endured. And it still does. Where the rule of law is commended, it is typically for what it rules out rather than what it rules in; what it restrains and prevents, rather than what it generates and encourages to flourish.
That is not the only way of viewing the rule of law, however, and arguably not the best. Jeremy Waldron has recently criticized views of constitutionalism according to which “[e]verything is seen through the lens of restraint and limitation,” and has insisted on the empowering role and potential of constitutional provisions. Similar points might be made about the rule of law. Stephen Holmes has long stressed the empowering consequences of law; what, in contrast to the more common negative conception, he calls “positive constitutionalism”. Appropriately configured laws, on this view, provide “enabling constraints.”. Continue reading "Jurisprudence for Emergencies"
Jan 12, 2011 Robin WestJurisprudence
Marc Spindelman, Essay, Sexuality’s Law, 20 Colum. J. Gender & L. (forthcoming 2011).
Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.
Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them? The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected. Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently. Why? Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex? Continue reading "Sex/Power/Law"
Dec 8, 2010 Sean CoyleJurisprudence
The question of the nature of law lies at the heart of jurisprudence. At the present day, the major sources of debate on the question revolve around acceptance or otherwise of ‘legal positivism’ and associated doctrines of analytical jurisprudence. Do we reveal the nature of law when we clarify the conceptual presuppositions of certain social practices? Must theories of the nature of law be ‘neutral’, ‘descriptive’ or ‘detached’? Or are social practices essentially ‘interpretive’, so that the nature of law is only revealed when it is expounded as the expression of a moral or political idea? How, indeed, are we to tell whether analytically pleasing distinctions (such as that between law and morality) genuinely clarify the nature of the object under investigation (law), rather than obscuring it? These debates are clearly capable of exerting their own fascination; but one might suspect them of diverting attention from the traditional concern of jurisprudence, which is to elucidate the nature of law as a social institution, and to throw light upon its place within the human condition. Such inquiries stimulate a specific interest in the significance of law as a distinctive type of social ordering. This is a dimension of understanding that is as lost upon modern critics of positivism as it is upon positivists themselves: for example, in his recent book Justice in Robes, Dworkin argues that philosophical significance attaches only to the substance of legal doctrine, there being no philosophically interesting issues relating to law as a social institution (Justice in Robes, Harvard, 2006, 2-3).
Pirie’s article is refreshing because it avoids the recent debates in favour of an investigation into the nature of law as a social and intellectual phenomenon. Law is not simply a set of practices or a body of norms, but an intellectual system (207). Her concern is to explore the idea of law in terms of its form. We might initially suppose that law can be defined in opposition to forms of negotiated order: a supposition that draws a close association between law and government. Is this anthropologically valid? According to Pirie, law is to be identified ‘neither by reference to the negotiation of order, nor by reference to government. It is, rather … identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.’ (id.) The central question is then how law is different from other forms of ideological system (208). Continue reading "The Nature of Law and the Human Condition"
Nov 12, 2010 Daria RoithmayrJurisprudence
If there is a single issue that ought to dominate all others in scholarship about race, it should be the hyperincarceration of black men. And if I had to recommend one piece of scholarship on this issue to read, it would be a recently published essay by Loic Wacquant. Wacquant contributed this essay (which has no title) to a slim and elegant volume edited by Glenn Loury. Wacquant’s short contribution is more than just provocative; it is a bit mind blowing, for reasons that I will explain. The essay draws on a decade’s worth of work by Wacquant, synthesized here into seven short pages. I am happy to note that, owing to Loury’s visibility, both the issue and Wacquant’s contribution now are finally likely to get the attention they deserve.
Wacquant sets out his argument in four steps. First, Wacquant argues that hyperincarceration targets a very specific population by race and class: poor black men in the crumbling ghetto. Several commentators have suggested that the spike in incarceration rates can be attributed to a general increase in crime and punishment. Using available statistics, Wacquant demonstrates that we are imprisoning more people even controlling for the crime rate; the number of convictions per 10,000 “index crimes” has quintupled, from 21 in 1975 to 106 in 1999. Moreover, these new convictions are of black men: the predominant race of prisoners has flipped, from 70% white just after World War II to the current rate of 70% non-white. Continue reading "The Ghetto and the Prison"
Oct 20, 2010 Matthew KramerJurisprudence
Jeremy Waldron, Lex Talionis, 34 Ariz. L. Rev. 25 (1992).
Although Jeremy Waldron’s article on the lex talionis is not as recent as most of the other writings covered by JOTWELL, I came upon it only a couple of years ago. I feel that it should be discussed here, because it has not received as much attention as it deserves within the philosophy of criminal law.
Retributivism as a philosophy of punishment has emerged in a multitude of forms, but virtually every retributivist maintains that punishments should fit the just deserts of offenders. That abstract idea has been cashed out with somewhat more concrete principles, each of which is itself in need of cashing out. Many retributivists invoke the notion of commensurateness, as they contend that the severity of any punishment should match the seriousness of the crime(s) for which the punishment is imposed. Commensurateness, a cardinal property, consists in quantitative equivalence. Many retributivists additionally or alternatively rely on the notion of proportionality, as they contend that any differences in the severity of punishments should be correlated with differences in the gravity of the crimes for which the punishments are imposed. Proportionality, an ordinal property, consists in an alignment between two sets of quantitative gradations. Continue reading "A Neglected Strand of Retributivism"
Oct 6, 2010 W.A. EdmundsonJurisprudence
Philosophers of law and philosophers of language used to hang out together more. H.L.A. Hart spent Saturday mornings over at J.L. Austin’s in the 1950s and 60s, hashing out questions of meaning and usage with Paul Grice. Hans Kelsen did not think much of Wittgenstein, but in the 1920s he chummed around with Moritz Schlick, Otto Neurath, and other members of the celebrated Wiener Kreis, the Vienna Circle of philosophers who were making the analysis of language a foreground concern. But, as the twentieth century wore on, practitioners of the two specialties wandered apart. For thirty years on, legal philosophers have tended to dwell on somewhat inward debates over legal positivisms and postscripts thereto, while philosophers of language have been on a great hunt for a semantics of natural languages generally, which has led them to investigate things like naming, reference, and the truth conditions of modal and counterfactual statements. True, the philosophers of law have tried to keep up with the philosophers of language; but, the philosophers of language with the philosophers of law? Not so much. There’s no shortage of legal philosophy that purports to say what philosophers of language would say about law, but next to nothing directly from philosophers of language about law. Are we legal philosophers getting it right?
The silence from the other side of the table made me uneasy. So I was excited to run across this essay by Scott Soames. Soames is Director of the School of Philosophy at USC, where he can lunch with Andrei Marmor, the distinguished philosopher of law. The essay is the concluding chapter of the first volume of Soames’s collected essays, most of which have to do with technical topics in philosophy of language. The Introduction to the volume is a useful preliminary survey of his views of such things as why linguistic structures aren’t likely to map onto the psychological substructures of linguistic competence, and the respective roles of semantics and pragmatics, as reflected in his “least common denominator” view of semantic content. At the end of the Introduction, Soames pauses to reminisce: Continue reading "“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide"
Sep 9, 2010 Mortimer SellersJurisprudence
On November 2, 2010 the people of Oklahoma will vote on a “Save Our State Amendment” to their constitution, which would forbid Oklahoma courts from even “considering” international law in their judgments. This proposal (already approved by the Oklahoma legislature) reflects a widely shared belief that international law should be disregarded or actively opposed because it is not as “legitimate” as the ordinary legislation of constitutional democracies. Samantha Besson and John Tasioulas have done lawyers, scholars and the public an enormous service in their volume on The Philosophy of International Law by raising the level of debate about the moral and political standards that should govern the assessment (and development) of international institutions. This book raises fundamental questions about the legitimacy and justice of the international legal order and opens the door to international law as a serious subject of philosophical inquiry.
Modern international law began with Hugo Grotius as an exercise in practical philosophy, and the resulting doctrines continue to make the line between law as it is and law as it ought to be much fuzzier at the international level than it is in most states. This gives philosophers and philosophically minded lawyers real authority in determining the future and actual success of international law. Besson and Tasioulas have collected twenty-nine essays by thirty-three leading philosophers and international lawyers addressing the sources and nature of international law, including the role of human rights, economic realities and democracy in determining the contours of international responsibility. These essays clarify why and whether we should care about or obey the dictates of international law. Continue reading "The Legitimacy of International Law"
Aug 12, 2010 Ekow YankahJurisprudence
The common complaint that the distinction between Kant’s moral and legal philosophy is unknown is not strictly true. Many engaged in legal philosophy have encountered, time and again, the reminder (or admonition) to treat with care the distinction between Kant’s ethics and the rechtlehre. Further, Kant’s political philosophy has been the subject of many fine books over the last quarter century. What is difficult, rather, is to keep the distinction foremost in one’s mind when the philosophical heat, so to speak, is turned on. Well intentioned, one notes the critical distinction between the purity of a will acting on moral reasons undergirding Kant’s ethics and the preservation of equal external freedom on which Kant’s political philosophy is based. Yet when thorny questions are leveled, it is too easy to slip into familiar groves, weighing whether an action is appropriately prohibited by measuring its legitimacy against, say, the Categorical Imperative.
One problem, I suspect, is the lack of a text, close at intellectual hand, which has carefully explored Kant’s political philosophy and explicated its branches in a wide range of subject matters. Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy could by its intelligence, clarity and ambition fundamentally arrest and repair the sloppiness with which Kant’s political and moral philosophy are too often jumbled. Continue reading "The Moral Within, The Law Without"
Jul 8, 2010 Michael GreenJurisprudence
Anglophone philosophy of law is remarkably focused on one book – The Concept of Law by H.L.A. Hart. This may be a mistake. It is hard to imagine a single book – much less an introductory work for undergraduates written almost fifty years ago – playing a comparable role in, say, the philosophy of language or mind. But given that The Concept of Law does occupy such an important place in the philosophy of law, it is all the more important to get what Hart said in the book right. Julie Dickson’s recent article does, in a way that has importance for the field more generally.
Hart argued that at the foundation of each legal system there is a practice among officials of enforcing norms only if they satisfy certain ultimate criteria. For example, in England officials enforce norms only if they can be traced back to the Queen-in-Parliament. Hart calls these enforcement criteria the rule of recognition for the legal system. Continue reading "Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition"
Jun 7, 2010 Connie RosatiJurisprudence
Frederick Schauer,
Was Austin Right After All? On the Role of Sanctions in a Theory of Law, 23
Ratio Juris, 1 (2010), available at
SSRN, and Frederick Schauer,
Positivism Before Hart, in M.D.A. Freeman, ed.,
John Austin and His Legacy, available at
SSRN.
Survey courses in analytical legal philosophy commonly include brief excerpts from the jurisprudential writings of Jeremy Bentham and John Austin. After a cursory treatment of their work, with emphasis on the “command theory” of law, the focus shifts to H.L.A. Hart’s famous critique of Austin and then to Hart’s own influential version of legal positivism. The prevailing view has long been that Hart’s critique of Austin was decisive and that Hart’s own theory of law expresses legal positivism’s “core commitments.” Both bits of the conventional wisdom come under scrutiny in a pair of provocative recent articles by Frederick Schauer.
In “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Schauer explains why, contrary to the prevailing view, Austin’s account of law may have been more nearly accurate than Hart’s. He acknowledges that on many points, Hart identified important deficiencies of Austin’s account. Austin focused, for example, on duty-imposing rules, neglecting the critical and sometimes constitutive role of the power-conferring rules so pervasive in advanced legal systems. And his notion of the sovereign oversimplified legal systems in multiple ways by essentially treating all of law on the model of an absolute monarch’s imposition of rules on obedient subjects. Continue reading "Rethinking Legal Postivism"
