Law Commons^™

Hallows Lecture: Complexity And Contradiction In American Law, Gerard E. Lynch

Marquette Law Review

None.

Interconstituted Legal Agents, Christian Turner

Scholarly Works

Legal theory and doctrine depend on underlying assumptions about human nature and sociality. Perhaps the most common and basic assumption is that we are separate persons who communicate imperfectly with one another. While this separation thesis has been questioned, it still dominates legal theory. However, I show that understanding separation and connection as alternative perspectives, rather than as ontologically true or false, reveals that legal conflict often arises when these perspectives give rise to clashing intuitions concerning the meaning of community and what constitutes goals and harms. This Article organizes perspectives on social relationships in increasing order of intersubjectivity: isolation, …

The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee

St. Mary's Law Journal

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

Preserving Life By Ranking Rights, John William Draper

Librarian Scholarship at Penn Law

Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Constituencies And Contemporaneousness In Reason-Giving: Thoughts And Direction After T-Mobile, Donald J. Kochan

Donald J. Kochan

What Is An Accident?, Daniel B. Yeager

Daniel B. Yeager

Please consider for publication my attached 5000-word, 28-page, lightly annotated (39 footnotes) Essay, entitled “What Is an Accident?”

Here I attempt to decode the most frequently proferred excuse in and out of law. Surprisingly, as central as accidents are to questions of responsibility, their criteria have received almost no attention at all. From what I can tell, mine is the first sustained attempt to identify the grammar of accidents, an endeavor that follows up on similar efforts to do the same with the excuse of mistake in my book J.L. Austin and the Law: Exculpation and the Explication of Responsibility …

Four Challenges Confronting A Moral Conception Of Universal Human Rights, Eric Blumenson

Eric Blumenson

This Essay describes some fundamental debates concerning the nature and possibility of universal human rights, conceived as a species of justice rather than law. It identifies four claims entailed by such rights and some significant problems each claim confronts. The designation “universal human rights” explicitly asserts three of them: paradigmatic human rights purport to be (1) universal, in that their protections and obligations bind every society, regardless of its laws and mores; (2) human, in that the rights belong equally to every person by virtue of one’s humanity, regardless of character, social standing, disabilities, or other individual attributes; and (3) …

Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson

Articles

This article describes the metaphysics of Kant, according to which we never know the Thing In Itself but only the appearance of it. When applied to selfhood (which is a “thing”), Kant implies that we never know what motivates us to do what we do. Our reasons are after-the-fact apologies to justify our acts. For that reason the “cause” of our deed always (that is to say, our reasons) follows the deed itself. Effect precedes cause, on Kantian metaphysics.

The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin

San Diego Law Review

Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a "philosophical reconstruction" of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps. This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a …

The Rule Of Law As An Institutional Ideal, Gianluigi Palombella

Gianluigi Palombella

This article aims at offering an innovative interpretation of the potentialities of the "rule of law" for the XXI Century. It goes beyond current uses and the dispute between formal and substantive conceptions, by reaching the roots of the institutional ideal. Also through historical reconstruction and comparative analysis, the core of the rule of law appears to be a peculiar notion, showing a special objective that the law is asked to achieve, on a legal plane, largely independent of political instrumentalism. The normative meaning is elaborated on and construed around the notions of institutional equilibrium, non domination and "duality" of …

Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane

Faculty Scholarship

This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centerpiece of the book’s affirmative agenda, a “non-reductionist” definition of international law that purports to elide various forms of international law skepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to …

Rights As Norms And As Ends, Gianluigi Palombella

Gianluigi Palombella

This article considers the narratives of law through the lens of the form-substance devide. Different legal theories have provided for opposite definitions of law, legal rules and individual rights, enhancing their identity as due to some substantive content or, on the contrary, to some formal-functional features. The form-substance antinomy reflects both institutional and theoretical reasons. It bears down on the relations envisaged among rights, norms and ends. Different conceptions of rights are best understood as a special articulation of those three terms, and offer different patterns for rights, depending on their relation-opposition with collective ends, ethical values, legislation. The following …

Reasons For Justice, Rights And Future Generations, Gianluigi Palombella

Gianluigi Palombella

This article focuses on some very "fundamental threats" to future generations' leaving, and considers whether most essential interests of future persons not to be harmed can be construed as rights, and in particular as human rights, as much as present persons'. The framework refers essentially to a conceptual grammar of justice. Moreover, it is suggested to articulate rights through the lens of "disposability" and "non-disposability" principles. Finally, the article shows the reasons for separating what we owe to future persons under the challenge of those threats for humanity, i.e. a matter of justice, from our right to hand down our …

Herbert Hart Elucidated, A. W. Brian Simpson

Michigan Law Review

There are a number of good biographies of judges, but very few of individual legal academics; indeed, so far as American legal academics are concerned, the only one of note that comes to mind is William Twining's life of Karl Llewellyn. Llewellyn was, of course, a major figure in the evolution of American law, and his unusual life was a further advantage for his biographer. In this biography, Nicola Lace has taken as her subject an English academic who also had an unusual career, one whose contribution was principally not to the evolution of the English legal system but to …

Truth Or Consequences In Legal Scholarship?, David R. Barnhizer

Law Faculty Articles and Essays

There has been an erosion of the ideal of truth as a guiding force for what we do. This includes a dishonoring of the tradition of the truth-seeking function of scholars. For the university-based intellectual, including legal scholars, the problem with commitments to ends other than truth-seeking is that once we accept a mission distinct from the pursuit of truth and honest discourse, most of the remaining options are suspect - including falseness, hypocrisy, self-deception, subordination of self to a collective, profit, dogmatism, devotion to tradition, and propaganda.

Although what we intend by the idea of truth - legal, scientific, …

The Jurisdiction Of Justice: Two Conceptions Of Political Morality, Larry Alexander

San Diego Law Review

My topic in this essay is a major fault line within normative theory. More precisely, it is a major fault line within that part of a normative theory that deals with the content of our moral obligations to others. When I refer to moral obligations here, I am referring to those acts that morality demands of us such that it permits force or its threat to be employed to secure those acts. Moral obligations as I use the term are thus candidates for legal enforcement. I argue that much of what is debated within liberal political/moral theory can be usefully …

The Quest To Reprogram Cultural Software: A Hermeneutical Response To Jack Balkin's Theory Of Ideology And Critique, Francis J. Mootz Iii

Scholarly Works

Critical theory has lost the self-assurance that defined the heady days of Marxist economics and Freudian psychoanalysis. In his famous debate with Hans-Georg Gadamer thirty years ago, Jürgen Habermas argued that critical theory was a necessary corrective to the quiescence and conventionalism that followed from Gadamer's hermeneutic perspective. As the 1960s unfolded, the second generation of the Frankfurt School appeared poised to bring sophisticated techniques of social criticism to bear on the emerging postindustrialist system of global capitalism. But the promise of critical theory failed to materialize. Today, Habermas plays the role of the aging lion who refuses to accept …

Rhetoric, Pragmatism And The Interdisciplinary Turn In Legal Criticism -- A Study Of Altruistic Judicial Argument, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Book Review: Postmodern Legal Movements: Law And Jurisprudence At Century's End By Gary Minda, Chris Sagers

Law Faculty Articles and Essays

Postmodem Legal Movements does two things. First, the bulk of the book provides an overview of American jurisprudence, from Christopher Columbus Langdell to the present. This overview is necessary because, in order to understand "postmodem forms of jurisprudence, we must first explore what came before postmodernism, that is, modernism" (p. 5). Second, the relatively short latter portion of the book presents an argument about the current state of American legal scholarship and its future. Minda's picture of contemporary legal thought is that of a paradigm shift in the making.

Postmodern Legal Movements will prove useful to those in search of …

Integrative Jurisprudence, Jerome Hall

Articles by Maurer Faculty

Editorial Note: The following paper was originally presented in Mexico City on December 10, 1975, in a symposium honoring Professor Emeritus Luis Recasens Siches of the National University of Mexico.

Analytic Philosophy And Jurisprudence, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

From Legal Theory To Integrative Jurisprudence, Jerome Hall

Articles by Maurer Faculty

No abstract provided.

"Is" And "Ought" In Legal Philosophy, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

The Concept Of "Law", Vilhelm Aubert

Kentucky Law Journal

No abstract provided.

Ethical Theory And Legal Philosophy, Stanley D. Rose

Vanderbilt Law Review

Jurisprudence and ethics, the author believes, represent distinct efforts to achieve values in society. However, because of their similar method, bases in fact, and testing by consequences, each has something to give the other. With this in mind, the article examines the work of contemporary writers in ethics, both to determine what exactly are their positions and to see what they might offer the student of jurisprudence.

Gustav Radbruch, Wolfgang Friedmann

Vanderbilt Law Review

As recently as the end of the last World War the name and work of Gustav Radbruch were virtually unknown in the Anglo-American legal world. In 1938 Roscoe Pound, in his encyclopedic survey, "Fifty Years of Jurisprudence," had given a concise account of Radbruch's legal philosophy in the context of his section on "neo-idealism." In 1944 Anton Hermann Chroust wrote a penetrating analysis of Radbruch's philosophy of law, and about the same time the first edition of the present writer's Legal Theory, published on the other side of the Atlantic, included Gustav Radbruch in the survey of major legal philosophers. …

Studies In Legal Philosophy, William R. Anderson

Vanderbilt Law Review

The hazards of planning a symposium in the field of jurisprudence derive largely from the fact that the field is itself ill-defined; the legitimate "province of jurisprudence," to use Austin's phrase, has never been fully agreed upon. A historical approach seemed reasonably satisfactory, however, and what follows is a series of studies of some of the great figures in the history of legal philosophy. Happily, no one of our contributors was satisfied with simple exegesis or even with appraising matters of purely historical importance. Each study is an attempt to deal critically with a facet of its subject which is …

Reason And Reality In Jurisprudence, Jerome Hall

Articles by Maurer Faculty

No abstract provided.