Law Commons^™

Relativism, Reflective Equilibrium, And Justice, Justin Schwartz

Justin Schwartz

THIS PAPER IS THE CO-WINNER OF THE FRED BERGER PRIZE IN PHILOSOPHY OF LAW FOR THE 1999 AMERICAN PHILOSOPHICAL ASSOCIATION FOR THE BEST PUBLISHED PAPER IN THE PREVIOUS TWO YEARS.

The conflict between liberal legal theory and critical legal studies (CLS) is often framed as a matter of whether there is a theory of justice that the law should embody which all rational people could or must accept. In a divided society, the CLS critique of this view is overwhelming: there is no such justice that can command universal assent. But the liberal critique of CLS, that it degenerates into …

Litter Or Literature: Does The First Amendment Protect Littering Of Neighborhoods?, Stephen Durden

Stephen Durden

Pamphlets can be as simple as a single piece of paper or as voluminous as a small newspaper placed in a plastic bag. Each method of distribution engenders its own particular problems. The purpose of this Article is to examine the legal implications of pamphlet distribution, particularly distribution on residential property. Are these pamphlets litter or literature? Or, might they be called “litter-ature”--a combination of both? The first part of this Article sets forth some of the problems associated with the distribution of pamphlets, especially on residential property. The second part examines the First Amendment speech implications of distributing literature …

Habermas's Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran

Mark C Modak-Truran

Jürgen Habermas's discourse theory of law poignantly sets forth the modern legitimation crisis of law. Relying on Max Weber's social theory and sociology of law, he argues that the rationalization of society has eliminated religious and metaphysical justifications for law and has differentiated law from politics and morality. Law must now be legitimated based on its legality. The legal positivists (including Weber, H.L.A. Hart, John Austin) and John Finnis attempt to define legality merely in terms of procedural requirements. Habermas, however, demonstrates the circularity of this definition of legality. Legal positivists fail to legitimate the procedural requirements that are claimed …

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

Stephen M. Feldman

This article explains the crucial differences between premodernism and modernism. A distinctive feature of premodernism was an abiding faith in nature or God as a stable and foundational source of meaning and value. When premodernism gave way to modernism, the commitment to foundationalism remained intact. Modernists believed that knowledge must be firmly grounded on an objective foundation. A crucial distinction between modernism and premodernism, however, lay in their respective ideas of foundations. Whereas premodernists readily accepted God and nature as foundational sources for value and knowledge, modernists rejected religious, natural, and other traditional footings and searched for some alternative foundation. …