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The International Legal Order And The Rule Of Law, Vivian Grosswald Curran

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This article addresses whether international law today is capable of instituting the rule of law. It offers a renewed look at the internationalists who brought us modern international law, such as Lauterpacht, Cassin and Lemkin. They tenaciously worked at placing the individual’s right to life and to human dignity front and center in international law while also preserving peace among states. Their struggle began in earnest first in the interwar years after the “war to end all wars” (1918 – 1939), and then again in 1945 after yet another, still worse, world war had occurred, devastating Europe, but leaving the …

Peace And Subjectivity, Louis E. Wolcher

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So long as there is law there can be no universal human right to peace. This is because legalized violence, whether in threat or in deed, constitutes the very antithesis of peaceful relations from the point of view of those whom law represses. Law cannot define peace as the absence of all violence—and still less as the absence of all legalized suffering—without gainsaying justice, for as Pascal says, “Justice without might is helpless; might without justice is tyrannical.” Although legal outcomes, like falling boulders and pouncing lions, can always be imputed to historical causes, experience teaches that legal actors generally …

Divine Justice And The Library Of Babel: Or, Was Al Capone Really Punished For Tax Evasion?, Gabriel Mendlow

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A criminal defendant enjoys an array of legal rights. These include the right not to be punished for an offense unless charged, tried, and proved guilty beyond a reasonable doubt; the right not to be punished disproportionately; and the right not to be punished for the same offense more than once. I contend that the design of our criminal legal system imperils these rights in ways few observers appreciate. Because criminal codes describe misconduct imprecisely and prohibit more misconduct than any legislature actually aspires to punish, prosecutors decide which violations of the code merit punishment, and judges decide how much …

The Pragmatist Tradition: Lessons For Legal Theorists, Susan Haack

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No abstract provided.

Wrongs, Rights, And Third Parties, Nicholas Cornell

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In philosophical and legal arguments, it is commonly assumed that a person is wronged only if that person has had a right violated. This assumption is often viewed almost as a necessary conceptual truth: to be wronged is to have one's right violated, and to have a right is to be one who stands to be wronged. I will argue that this assumption is incorrect—that having a right and standing to be wronged are distinct and separable moral phenomena.

My argument begins from cases in which third parties are affected by the violation of someone else's rights. I will introduce …

Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit

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This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more …

Ethics And International Law: Integrating The Global Justice Project(S), Steven R. Ratner

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Academic discourse on global justice is at an all-time high. Within ethics and international law, scholars are undertaking new inquiries into age-old questions of building a just world order. Ethics – political and moral philosophy – poses fundamental questions about responsibilities at the global level and produces a tightly reasoned set of frameworks regarding world order. International law, with its focus on legal norms and institutional arrangements, provides a path, as well as illuminates the obstacles, to implementing theories of the right or of the good. Yet despite the complementarity of these two projects, neither is drawing what it should …

The Arabs In The (Inter)National, Haider Ala Hamoudi

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This essay is a commentary on an article submitted by Professor Lama Abu-Odeh as part of a special symposium edition contained in Volume 10 of the Santa Clara Journal of International Law. In her piece, Professor Abu-Odeh builds on her earlier work respecting Islamic law but adds a new target to her sites, that of the study of national security. That is, we already knew Professor Abu-Odeh’s view of the typical Islamic law scholar. He is one who is focused either on the resurrection of the shari’a in some sort of reconstructed form or involved in a thoroughly misguided search …

Documentary Disenfranchisement, Jessie Allen

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In the generally accepted picture of criminal disenfranchisement in the United States today, permanent voting bans are rare. Laws on the books in most states now provide that people with criminal convictions regain their voting rights after serving their sentences. This Article argues that the legal reality may be significantly different. Interviews conducted with county election officials in New York suggest that administrative practices sometimes transform temporary voting bans into lifelong disenfranchisement. Such de facto permanent disenfranchisement has significant political, legal, and cultural implications. Politically, it undermines the comforting story that states’ legislative reforms have ameliorated the antidemocratic interaction of …

Legal Interpretation: The Window Of The Text As Transparent, Opaque, Or Translucent, George H. Taylor

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It is a common metaphor that the text is a window onto the world that it depicts. In legal interpretation, the metaphor has been developed in two ways – the legal text as transparent or opaque – and the Article proposes a third – the legal text as translucent. The claim that the legal text is transparent has been associated with more liberal methodological approaches. According to this view (often articulated by critics), the legal text does not markedly delimit meaning. Delimitation comes from the interpreters. By contrast, stress on the opacity of the legal text comes from those who …

A Theory Of Adjudication: Law As Magic, Jessie Allen

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This article takes a new approach to the problem of legal rationality. In the 1920s and 1930s the Legal Realists criticized judicial decisions as "magic solving words" and "word ritual." Though the Realist critique continues to shape American jurisprudence, the legal magic they observed has never been seriously explored. Here, drawing on anthropological studies of magic and ritual, I reconsider the irrational legal techniques the Realists exposed. My thesis is that the Realists were right that law works like magic, but wrong about how magic works. That is, they were right that adjudication makes use of a particular combination of …

Race, Rights, And The Thirteenth Amendment: Defining The Badges And Incidents Of Slavery, William M. Carter Jr.

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The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any lingering "badges and incidents of slavery." The Court, however, has failed to provide any guidance as to defining the badges and incidents of slavery when Congress has failed to identify a condition or form of discrimination as such. This has led the lower courts to conclude that the judiciary's role under the Thirteenth Amendment is limited to enforcing only the Amendment's prohibition of literal enslavement.

This article has two primary objectives. First, it offers an interpretive framework for defining …

Derrick Bell's Narratives As Parables, George H. Taylor

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Use of the narrative form in law and legal analysis remains controversial, especially by advocates of critical race theory. Critics maintain that narratives can distort if they are not sufficiently based on empirical fact or reason. Narratives, the claim goes, must be evaluated on the basis of objective standards. My Article argues that this posture critical of narrative is mistaken. I contend that to comprehend how narratives should be interpreted, their literary character must first be understood.

The Article examines the narratives of Derrick Bell, the preeminent critical race and narrative scholar, and maintains that Bell's narratives should be read …

Legal Commitments And Religious Commitments, Jospeh Vining

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In his elegant and accessible new book, Law's Quandary, Steven Smith groups our various senses of what is real for us into ontological families: the mundane; the scientific, including mathematics; and the religious. These supply "lumberyards," as it were, for thought and discussion about the world and action in it. Law itself is not one of them. Those involved in law, as citizens or professionals practicing law or speaking for or about law, are presented in the book as looking out from law to the ontological resources available in the lumberyards he describes.

The Mystery Of The Individual In Modern Law, Jospeh Vining

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To their murderers these wretched people were not individuals at all. They came in wholesale lots and were treated worse than animals. This was Telford Taylor, beginning the presentation of the "Medical Case" at the Nuremberg Trials. The "Medical Case" was not about genocide or war or the conduct of war. It was about experimentation on human beings, and it was this trial that produced the "Nuremberg Code," the first control of such treatment of human beings by one another, so surprisingly late in the history of modern scientific investigation, midtwentieth century, and so surprisingly absent everywhere before, despite the …

The Questioning Attitude: Questions About Derrida, Martin J. Stone

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No abstract provided.

What's Real For Law?, Jospeh Vining

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Law is not academic. The univeristy if not its home. Law is in the wider world and is pervasive there, in language, thought, and action.

Can A Theory Of Interpretation Make A Difference?, George H. Taylor

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Can a theory of interpretation make a difference? The question has been posed most prominently by Judge Richard Posner, who, in recent work, has criticized the ability to make a difference of both theory writ large and of a theory of interpretation in particular. In other work I contend, contrary to Posner, that a theory of interpretation can make a difference at the level of methodology. Using the example of constitutional and statutory interpretation in law, I develop a theory that argues for the propriety and value of certain methods of interpretation over others. In the present essay, my concern …

Critical Hermeneutics: The Intertwining Of Explanation And Understanding As Exemplified In Legal Analysis, George H. Taylor

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One of the most vexing questions in hermeneutics is whether it can be critical-whether it can engage in critique. In Part I of this Article, I show how within legal hermeneutics the element of critique is present even within those forms of legal interpretation most adherent to stances of "understanding." Here I concentrate on the work of Robert Bork and Justice Antonin Scalia and demonstrate how distance, separation, critique is present within their theories. In Part II, I reverse emphases and show how elements of "understanding" persist within legal theories most avowedly reliant on forms of "explanation." My exemplar here …

Making Motions: The Embodiment Of Law In Gestures, Bernard J. Hibbitts

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In contemporary America, the locus of legal meaning is habitually deemed to be the written word. This article pushes our conception of law’s “text” beyond its traditional inscripted bounds by focusing on physical gesture as a legal instrumentality. The few studies of legal gesture undertaken to date have explained its prominence in various legal systems and cultural environments, the significance of specific legal gestures in specific historic contexts, and the depiction of legal gestures in particular manuscripts or other specific physical settings, but no one has considered the general functions of legal gesture as a modality.

In an effort to …

'Coming To Our Senses': Communication And Legal Expression In Performance Cultures, Bernard J. Hibbitts

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This article examines how semi-literate or largely non-literate cultures having little or no experience with writing ("performance cultures") communicate and express law and legal meaning through the orchestrated use of the physical senses. It first examines how each of the senses - hearing (sound), sight, touch, smell and taste - is brought to bear in the cultural and legal experience of performance-based societies. It then considers how and why members of performance cultures "perform", i.e. use and combine various sensory media in single messages, and describes how and why they use the same strategy in creating law and legal expression. …

Legal Affinities, Joseph Vining

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Not long ago, any question of the kind "How may theology serve as a resource in understanding law?" would have been hardly conceivable among lawyers. When Lon Fuller brought out his first book in 1940, The Law in Quest of Itself, he could think of no better way of tagging his adversary the legal positivist than to note a "parallel between theoretical theology and analytical jurisprudence." Two decades later, in the name of realism, Thurman Arnold dismissed Henry Hart's non-positivist jurisprudence in harsh terms. A master of the cutting phrase, he confidently entitled his attack "Professor Hart's Theology." Two decades …

Alternative Methodologies In Contemporary Jurisprudence: Comments On Dworkin, Philip E. Soper

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I have two brief points to make. Both involve recent developments in jurisprudence, by which I mean by and large the subject that Ronald Dworkin has just been discussing. Indeed, the first point is little more than an acknowledgement of the debt that is owed to Dworkin, not only for his specific contributions to this field, but for the implications of his work for law teaching generally.