Law Commons^™

Righting Health Policy: Bioethics, Political Philosophy, And The Normative Justification Of Health Law And Policy, D. Robert Macdougall

Publications and Research

In Righting Health Policy, D. Robert MacDougall argues that bioethics needs but does not have adequate tools for justifying law and policy. Bioethics’ tools are mostly theories about what we owe each other. But justifying laws and policies requires more; at a minimum, it requires tools for explaining the legitimacy of actions intended to control or influence others. It consequently requires political, rather than moral, philosophy. After showing how bioethicists have consistently failed to use tools suitable for achieving their political aims, MacDougall develops an interpretation of Kant’s political philosophy. On this account the legitimacy of health laws does …

The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.

Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt

Faculty Scholarship

Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …

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

Faculty 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.

Planning Positivism And Planning Natural Law, Martin J. Stone

Faculty Articles

Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no …

Legal Positivism As An Idea About Morality, Martin J. Stone

Faculty Articles

I ask what a proper critical target for 'legal positivism' might be. I argue that utilitarian moral theory, and more generally fully directive moral theories, are unacknowledged motivations for legal positivism. Contemporary debate about 'the nature of law' is, historically speaking, much more of a footnote to utilitarianism than has been recognized.

Review Of Arthur Ripstein, Force And Freedom, Andrew Botterell

Law Publications

No abstract provided.

Emotion, Neuroscience, And Law: A Comment On Darwin And Greene, John Mikhail

Georgetown Law Faculty Publications and Other Works

Darwin’s (1871) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et …

Thoughts On The Divergence Of Promise And Contract, Ian C. Bartrum

Scholarly Works

This essay offers some brief thoughts on Seana Shiffrin‘s recent work regarding the divergence of contractual and promissory norms. The author conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. The author suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and that, in fact, keeping strictly promissory duties outside the scope of state coercion actually facilitates a strong …

States Of War: Defensive Force Among Nations (Reviewing George P. Fletcher & Jens David Ohlin, Defending Humanity: When Force Is Justified And Why (2008)), Guyora Binder

Book Reviews

In "Defending Humanity: When Force is Justified and Why," George Fletcher and Jens Ohlin analogize international defensive force to individual self-defense. Based on this analogy, Fletcher and Ohlin justify a presumptive right on the part of every state to intervene against aggression, and a right of humanitarian intervention in support of national groups but not populations. They oppose reprisals, preemptive defense, and resistance to invading armies by irregular troops. This review essay argues that the relative weakness of the Security Council, the unequal power of states, and the contingency of international recognition on effective force all undermine the analogy between …

La Gastritis De Kant: Vuelta Al Problema Del Estatuto Epistemológico De La Jurisprudencia, Luis Gomez Romero

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

Para comenzar un diálogo con el breve y sustancioso trabajo sobre el estatuto epistemológico de la jurisprudencia (en el sentido amplio del término, esto es, entendido como “conocimiento del Derecho”, y no como “sentencias de los tribunales”) que Alejandro Nieto y Agustín Gordillo han presentado bajo el título de Las limitaciones del conocimiento jurídico (2003), parece pertinente recordar la (relativamente) reciente polémica entre el escritor y semiólogo Umberto Eco, y el novelista Antonio Tabucchi, sobre el papel del intelectual frente a la cotidianeidad del poder.

English: To start a dialogue with the brief and substantial work on the epistemological status …

The Kantian Theory Of International Law, Fernando R. Tesón

Scholarly Publications

This Article defends the view, first developed by Immanuel Kant, that international law and domestic justice are fundamentally connected.'

The Paradox Of Punishment, Paul Campos

Publications

Retribution demands reciprocity. In this Essay, Professor Campos contends that classic retributive theory encounters a logical paradox when it attempts to equalize the status of criminal and victim through the institution of punishment. This paradox arises out of a clash between the deontological requirements of equality and justice. He concludes by speculating on the historical relationship between rationalist justifications for vengeance and the elimination of punishment as public spectacle.

Legal Enforcement Of "Duties To Oneself": Kant Vs. Neo-Kantians, John M. Finnis

Journal Articles

This Article considers writings by modern scholars including Rawls, Dworkin, and D.A.J. Richards on the topic of Kant's discussion of the neutrality principle and the harm principle.

Causation In Torts, Crimes, And Moral Philosophy: A Reply To Professor Thomson, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Professor Judith Jarvis Thomson's provocative article, 'The Decline of Cause,' focuses on the diminishing importance of causation in law and moral philosophy. In this reply, I suggest answers to some of the questions Professor Thomson raises.

Professor Thomson's article revolves around various forms of a classic dilemma: two persons take equal care but, through chance, their actions produce different results. Does the outcome of their actions matter in a moral assessment of those actions? Professor Thomson first sets out what the styles as the Kantian and 'moral sophisticates" position that the outcome of an act does not and should not …

Editorial Preface To This Volume, Joseph H. Drake

Other Publications

In his editorial preface to Formal Bases of the Law, Professor Drake offers a detailed summary of Del Vecchio’s historical survey of the philosophy of law. Drake reiterates that “the struggle for better definition of law has resulted in continually widening the practical application of law. In like manner it may be shown that the constant broadening of the metaphysical bases of law has been accompanied by improvements in its practice, and to this purpose we may well address ourselves.” From Aristotle to Grotius, to neo-Kantians and neo-Hegelians… “Law is neither force simply nor growth simply, but law is right …