Arts and Humanities Commons^™

What Is Positive Law, Philippe Nonet

Philippe Nonet

No abstract provided.

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

François Tanguay-Renaud

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Towards A Jurisprudence Of The Embodied Mind - Sarah Lund, Forbrydelsen And The Mindful Body, Marett Leiboff

Faculty of Law, Humanities and the Arts - Papers (Archive)

As Erika Fischer-Lichte remarked, the great Polish theatre theorist Jerzy Grotowski redefined the notion of the body of the actor as an embodied mind, as a responsive and responding self. Conversely, law abjures the body, its interpreters – lawyers and scholars – inured in practices of rationality, reason and logic, or mindful disembodiment. Travelling through the Danish capital, encountering Danes real and fictitious to illustrate how much we function through our bodies, this essay suggests that we are better and more effective legal interpreters as embodied minds, rather than disembodied minds. But this is not mindless embodiment, a mere reflex …

Judge Posner’S Simple Law, Mitchell N. Berman

All Faculty Scholarship

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …

Intellectual Property, Asian Philosophy And The Yin-Yang School, Peter K. Yu

Faculty Scholarship

As an introduction to a special issue on intellectual property philosophy, this article focuses on insights from Asian thought. Such a focus is needed not only to provide balance within this special issue, which includes articles focusing primarily on Western philosophy, but also to highlight the compatibility between Asian philosophy and the notion of intellectual property rights. More importantly, this article aims to demonstrate that Asian philosophy may suggest new ways to address the ongoing and highly complex intellectual property challenges confronting emerging economies and the digital environment.

This article begins by providing a brief discussion of the many different …

Pragmatism On The Shoulders Of Emerson: Oliver Wendell Holmes Jr.'S Jurisprudence As A Synthesis Of Emerson, Peirce, James, And Dewey, Allen P. Mendenhall

Allen Mendenhall

Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories …