Law Commons^™

Book Review: Political Crime In Europe: A Comparative Study Of France, Germany And England. Barton L. Ingraham. University Of California-Berkeley Press, 1979., Albert M. Pearson Iii

Georgia Journal of International & Comparative Law

No abstract provided.

A Prequel To Law And Revolution: A Long Lost Manuscript Of Harold J. Berman Comes To Light, John Witte Jr., Christopher J. Manzer

Faculty Articles

The late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumental Law and Revolution series on the Western legal tradition. Berman wrote a short book, Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, including Law and Revolution. He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the …

Law And Artifice In Blackstone's Commentaries, Jessie Allen

Articles

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

All Faculty Scholarship

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …

Separation Of Powers Doctrine On The Modern Supreme Court And Four Doctrinal Approaches To Judicial Decision-Making, R. Randall Kelso

Pepperdine Law Review

No abstract provided.

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

The Limits Of Legal Realism, Anthony D'Amato

Faculty Working Papers

This article will address some criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism.

Elmer's Rule: A Jurisprudential Dialogue, Anthony D'Amato

Faculty Working Papers

Cardozo wrote of Riggs v. Palmer that this case that two analytical paths pointed in different directions and the judges selected the path that seemed better to lead to "justice". Dworkin has claimed that the case demonstrates the triumph of certain "principles" over what are called "rules of law". Taylor has argued that there was no "law" at all about murderers inheriting from testators before the actual decision in Riggs, and that consequently the decision itself was the only "law" that affected Elmer. All of these suggest that the decision in Riggs was largely unpredictable and therefore must have come …

On The Incoherence Of Legal Positivism, John Finnis

Journal Articles

Legal positivism is an incoherent intellectual enterprise. It sets itself an explanatory task which it makes itself incapable of carrying through. In the result it offers its students purported and invalid derivations of ought from is.

In this brief Essay I note various features of legal positivism and its history, before trying to identify this incoherence at its heart. I do not mean to renege on my belief that reflections on law and legal theory are best carried forward without reference to unstable and parasitic academic categories, or labels, such as "positivism" (or "liberalism" or "conservatism," etc.). I use the …

From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman

Vanderbilt Law Review

What distinguished premodern from modern American jurisprudence? Whereas most commentators agree that the transition from premodernism to modernism occurred around the Civil War,' recent writings reveal dissension regarding the nature of antebellum and postbellum jurisprudence. In a wonderfully detailed study of Christopher Columbus Langdell, his jurisprudence, and his case method of teaching, William P. LaPiana argues that a defining feature of Langdell's postbellum legal science was a positivism that contrasted with a natural law orientation characteristic of the earlier antebellum jurisprudence. In a provocative critical essay, Robert W. Gordon argues to the contrary: LaPiana's emphasis on natural law during the …

The Moral Dilemma Of Positivism, Anthony D'Amato

Faculty Working Papers

I think there has been an advance in positivist thinking, and that advance consists of the recognition by MacCormick, a positivist, that positivism needs to be justified morally (and not just as an apparent scientific and objective fact about legal systems). But the justification that is required cannot consist in labelling "sovereignty of conscience" as a moral principle, nor in compounding the confusion by claiming that positivism minimally and hence necessarily promotes sovereignty of conscience. We need, from the positivists, a more logical and coherent argument than that. Until one comes along, I continue to believe that positivists inherently have …

Jurisprudence As Narrative: An Aesthetic Analysis Of Modern Legal Theory, Robin West

Georgetown Law Faculty Publications and Other Works

Recent legal scholarship has engaged in a growing dialogue tying literary criticism to jurisprudence. In this article, Professor Robin West adds her voice by advocating the reading of legal theory as a form of narrative. Drawing from Northrop Frye's “Anatomy of Criticism,” Professor West first details four literary myths that combine contrasting world visions and narrative methods. She then applies Frye's categories to Anglo-American jurisprudential traditions and employs aesthetic principles to analyze influential legal theorists within these traditions. Finally, Professor West argues that recognizing the aesthetic dimension of legal debate frees us to realize our moral ideals.

On 'Positivism' And 'Legal Rational Authority', John M. Finnis

Journal Articles

This Article critiques Anthony Kronman’s book Max Weber, which provides an interpretation of Weber’s social theory of law concerning positivism and legal rational authority. In particular, the three premises of Kronman’s thesis regarding social theory are considered and their weaknesses are explained. Through this critique, the Author argues that no good reason has been presented to accept that Weber’s positivist theory is of value.

What 'Counts' As Law?, Anthony D'Amato

Faculty Working Papers

A reader of jurisprudence might conclude that only philosophers raise the question whether international law may be said to exist or is really law. But in terms of frequency, the question is probably raised more often by governments and states that are not trying to be philosophical. The increasing attention being paid to the need for, and the procedures for, objective validation of rules of international law in a burgeoning literature of international law evidences the seriousness of the problem, the responsibility of scholars for careful scholarship in this area of legal theory, and ultimately the good possibility of generally …

Ideology And History, David F. Forte

Law Faculty Articles and Essays

I do not dispute the philosophical validity of the theory of natural rights. Indeed, I support much, if not most, of the principles embodied in that theory. What I wish to discuss is that to which Dr. Vieira claims to have limited his discussion, viz., the belief that history, specifically American constitutional history, provides a sufficient base to support a natural rights theory. His attempt to find historical support is an instructive example of how ideology can distort the data of history and cause it to be portrayed in a strange and unreal light. Beyond that, Vieira's historical method also …

Friedrich: The Philosophy Of Law In Historical Perspective, Edgar Bodenheimer

Michigan Law Review

A Review of The Philosophy of Law in Historical Perspective. By C. J. Friedrich.

Recent Books, Michigan Law Review

Michigan Law Review

This department undertakes to note or review briefly current books on law and matters closely related thereto.

Clovis Bevilaqua And The Brazilian Civil Code, Anyda Marchant

Michigan Law Review

Clovis Bevilaqua is a monument in the history of Brazilian law. His death on July 26, 1944, closed the door on an epoch. When he began his career in the eighties, Brazilian law, with the exception of the commercial code, was uncoordinated and outmoded. Now. Brazil is in a period of very active work on the recodification of its laws and their adaptation to the needs of modern life. Not all of this change is the work of one man, but Bevilaqua was the principal lingering representative, among the lawyers, of the intellectual movement that accompanied the setting up of …