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Full-Text Articles in Legal History
Incommensurable Values, Rational Choice, And Moral Absolutes, David Luban
Incommensurable Values, Rational Choice, And Moral Absolutes, David Luban
Cleveland State Law Review
My comments in this paper are directed to just one argument, or rather one cluster of arguments, deployed by John Finnis in just three pages of Natural Law and Legal Reasoning. I am referring to Finnis's argument that the goods and bad at stake in legal, moral and political choice are incommensurable, and to the conclusions he draws from this argument. I will argue that while the incommensurability thesis is true, that is so for reasons somewhat different than those Finnis advances (section I); that in its most common form the incommensurability thesis does not in all cases imply the …
A Critical Legal Studies Perspective, Mark Tushnet
A Critical Legal Studies Perspective, Mark Tushnet
Cleveland State Law Review
In this comment I want to address two points suggested by Professor Finnis's essay "Natural Law and Legal Reasoning." I say "suggested by" deliberately, for I do not want to attribute the points in their full force to him, although I believe that his essay lends itself to a reading in which those points would be given their full force. The points deal with the question of "easy questions" and what Professor Finnis calls the "sufficient and necessarily artificial clarity and definiteness" that yields answers to such questions, and with the way in which legal professionals are likely to understand …
Justification In The Killing Of An Innocent Person, John Makdisi
Justification In The Killing Of An Innocent Person, John Makdisi
Cleveland State Law Review
It is appropriate to call Finnis' approach to life as an incommensurable basic human good a natural law approach. It suggests that there is more to life than just an accumulation of wealth, happiness, value, etc. There is something about life that we cannot value, that we cannot measure, that we cannot fathom, that is mysterious. While contract and even some tort law are readily adaptable to arguments of economic efficiency, there are areas where such arguments do not belong. Specifically, where the end result cannot be measured because the values at stake are incommensurable, there may be no best …
Natural Law Without Metaphysics: The Case Of John Finnis, Jeremy Shearmur
Natural Law Without Metaphysics: The Case Of John Finnis, Jeremy Shearmur
Cleveland State Law Review
Finnis, in Natural Law and Natural Right, sidesteps certain problems by taking a largely internalist view of natural law. First, for Finnis there is no problem of moving from facts to values, because within his starting-point-the "internal" reflective analysis of action-values are already there to be found. Second, Finnis suggests that what is today often cited as "the" statement of a fact/value problem, Hume's analysis, is in fact better understood as directed towards a different problem: one of the relation between truth and motivation. Here Finnis also offers a solution, suggesting that "one is motivated according to one's understanding of …
The Value Of Life, Lewis A. Kornhauser
The Value Of Life, Lewis A. Kornhauser
Cleveland State Law Review
This comment asks, in the context of cost-benefit analysis, what consistency requires. How much variation, if any, in valuation of life is justifiable? Inevitably, questions concerning the moral foundations of economic valuations of life will arise. Section 1 presents some evidence of variation among agency and academic valuations of life. It also outlines three different approaches to evaluation of health and safety projects. The variation detailed at the outset of section 1 is among aggregate, preference-based values of life. The subsequent discussion argues for the following claims. First, the most justifiable, "economic" approach to the evaluation of health and safety …
Natural Law As Practical Methodology: A Finnisian Analysis Of City Of Richmond V. J. A. Croson, Co., David Barnhizer
Natural Law As Practical Methodology: A Finnisian Analysis Of City Of Richmond V. J. A. Croson, Co., David Barnhizer
Cleveland State Law Review
The first part of this article examines some of the main features of Finnis's theory of natural law. It suggests that Finnis offers a "soft" theory of natural law anchored in a richer and more realistic conception of human nature than has generally characterized natural law theory. It brings forth the role of Aristotelian practicality in Finnis's thinking. Finally, the first part of the article discusses the roles of what Finnis calls basic human goods, attempting to suggest how the particular basic human goods he advances intuitively provide an important component of a framework for a more realistic variety of …
The Rule Of Law And The Rule Of Laws, David F. Forte
The Rule Of Law And The Rule Of Laws, David F. Forte
Cleveland State Law Review
The thesis of this article is that, for the Rule of Law to be maintained in a modern technological society, the legal system must affirmatively tolerate a range of justifiable non-compliance. I begin with a rather strong definition of the Rule of Law, one that encompasses not merely the procedural desiderata of Lon Fuller, but also the notion that the Rule of Law has a substantive content (the common good) and that it necessarily binds the rulers as well as the ruled. I posit as an opposite phenomenon to the Rule of Law, the rule of laws, or the term …
Whose Nature - Practical Reason And Patriarchy, Lynne Henderson
Whose Nature - Practical Reason And Patriarchy, Lynne Henderson
Cleveland State Law Review
My comments on John Finnis's Natural Law and Legal Reasoning grow out my concern about the relationship of law to authoritarianism. In this comment, I do not intend to go deeply into the relationship of law to authoritarianism but rather to sketch out the background of the argument. It seems to me that authoritarianism, properly understood, is of great relevance to a symposium on jurisprudence and legal reasoning, because at a minimum, authoritarianism overlaps with legality's ethic of rule-following and obedience to authority. Authoritarian attitudes about authority and morality also are relevant to the jurisprudential concern with the relation of …