Law Commons^™

Hegel’S Theory Of Measure, David G. Carlson

Articles

The final segment in Hegel's analysis of "being" is measure - the unity of quality and quantity. At stake in these chapters is the difference between quantitative and qualitative change. A being or thing is indifferent to quantitative change, which comes from the outside. For instance, a legislature can increase the stringency of zoning regulations, and yet the legislation is still constitutional "zoning." But there comes a point at which quantitative change effects a qualitative change - zoning becomes an uncompensated "taking" of property. This paper analyzes how Hegel, in the "Science of Logic," derives measure from the categories of …

Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld

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The United States protects much hate speech that is banned in other Western constitutional democracies and under international human rights covenants and conventions. In the United States, only hate speech that leads to "incitement to violence" can be constitutionally restricted, while under the alternative approach found elsewhere, bans properly extend to hate speech leading to "incitement to hatred." The article undertakes a comparative analysis in light of changes brought by new technologies, such as the internet, which allow for worldwide spread of protected hate speech originating in the United States. After evaluating the respective doctrines, arguments and values involved, the …

The Traumatic Dimension In Law, David G. Carlson

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This paper applies Jacques Lacan's theory of retrospective cause to the jurisprudence of H.L.A. Hart and his followers. The thesis is that "effect" (judicial decision) precedes "cause" (law). The proper tense for legal discourse is, therefore, future anterior. The following points follow from this: (1) Positivism asserts that law is not necessarily connected to morality, but this is a priori wrong. Law wishes to be separate from morality, but it necessarily fails. (2) The theory vindicates Dworkin's notorious "right answers" theory, but makes the additional point that there is only one answer: you are guilty; you failed to conform to …

Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran

Articles

The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the …