Law Commons^™

Jews, Not Pagans, Richard Schragger, Micah Schwartzman

San Diego Law Review

Richard Schragger & Micah Schwartzman’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Pagans, Christians, And Student Protesters, Stanley Fish

San Diego Law Review

Stanley Fish’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Christians And Pagans In The Sacred Nation, Christopher J. Eberle

San Diego Law Review

Christopher J. Eberle’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Jews And The Culture Wars: Consensus And Dissensus In Jewish Religious Liberty Advocacy, Michael A. Helfand

San Diego Law Review

In the recent culture wars, traditionalists and progressives have clashed over dueling conceptions of family, sexuality and religion—manifested in debates over abortion, contraception, and same-sex marriage. Caught in this conflict has been a political and cultural reassessment of religious liberty; a doctrine originally seen as necessary to protect faith commitments from majoritarian persecution, the public salience of religious liberty has waned as it has clashed with the rights of women and LGBT people. And these evolving commitments to dueling rights have triggered religious, political, and ideological realignments, generating new alliances across political and faith communities.

In this new environment, both …

Ribeiro On Mill's Harm Principle, Christopher T. Wonnell

San Diego Law Review

Ribeiro’s article is broadly sympathetic to Mill’s harm principle. However, it argues that there is no one conclusive argument in its favor. Rather, there are a plurality of different arguments that all lend strength to Mill’s general conclusion, at least in particular categories of cases. The Article begins by noting that the harm principle is not limited to criminalization. In various ways short of criminalization, the law seems to prefer some ways of life over others on what seem to be paternalistic or moralistic grounds rather than any kind of obvious harm the actors are doing to other people. We …

Unparadoxical Liberalism, Andrew Koppelman

San Diego Law Review

Larry Alexander argues that liberalism is internally incoherent because it contains a paradox: it is committed to toleration, but if it tolerates illiberal ideas and practices it betrays itself. The paradox does not exist. Liberalism aims to tolerate as much diversity as it can consistent with the preservation of the liberal project. It has distinctive reasons to tolerate illiberal ideas, since it aims to be adopted by the citizenry consciously and with a full understanding of the alternatives. How much diversity can, in practice, be tolerated is a contingent question dependent on the facts of any particular time and place. …

Legal Moralism Revisited, Michael S. Moore

San Diego Law Review

I shall use this occasion mostly to clarify what the legal moralist theory of criminal legislation proclaims to be the proper limits on the reach of criminalization of behavior. But preliminarily, here in this Introduction, I want to remind readers of how the principle is motivated. First, recall what a principle of criminal legislation is. It consists of two closely related items. First of all, it is a principle that sets forth the proper aims of a legislature when that legislature drafts the prohibitions and requirements that constitute the “special part” of the substantive criminal law. It is, second, a …

The Harm Principle, Legal Moralism, And The "Disintegration Thesis": On Lord Devlin Being Unable To Keep Playing The Smuggling Game, Miguel Nogueira De Brito

San Diego Law Review

The topic of the legal enforcement of morals, understood as the “question of the legitimacy of ‘vice crimes’ or ‘victimless crimes,’” is a special facet of the more general issue of the limits of the law. It is the subject of the long-standing debate as to whether law—all law—can be used as a support for moral conceptions as such, or, more generally, whether there are limits on the use of law to enforce morality, as when it is claimed that the law must remain neutral as between different views of the good, be they religious or otherwise. Whether understood in …

Why Liberal Tolerance, Rightly Understood, Is Coherent And Defensible, William A. Galston

San Diego Law Review

One of the most familiar criticisms of liberal democracy is that it cannot defend itself against its enemies while remaining true to its principles. This criticism is odd as well as unjust because theorists regarded as arch-liberals offer compelling reasons to reject it. . .

An Unjust Dogma: Why A Special Right To Religion Wrongly Discriminates Against Non-Religious Worldviews, Kenneth Einar Himma

San Diego Law Review

In this Article, I will argue that a special right to religious freedom is not morally warranted, and that hence such a right illicitly discriminates against non-religious worldviews. The principal argument here is that there is no adequate reason to think that religious worldviews implicate any interests distinct from those implicated by non-religious worldviews. While it is certainly true that religious worldviews warrant, as a matter of political morality, all the protections that non-religious worldviews receive, there is good reason to question what seems to have become a dogma among Western nations—namely, that religious worldviews deserve special protection....

A Transcendental Argument For Liberalism, Samuel C. Rickless

San Diego Law Review

Liberalism is the view that the state should not, except on mutually justifiable grounds, coerce a society’s citizens to adopt, support, or follow some particular comprehensive conception of the good. So understood, a liberal state, by definition, permits each citizen a zone of freedom delimited by her own understanding of the ingredients of a happy life. Liberalism, as a normative theory governing state–citizen (and, indirectly, citizen–citizen) relations, is opposed by various forms of totalitarianism, including theocracy and communism. A theocratic state is one that imposes a particular religious form of life on its citizens, and thereby restricts their freedom to …

Liberalism And Tolerance, William Voegeli

San Diego Law Review

I began by raising the possibility that tolerance is minor issue, having no bearing on whether liberalism works out or makes sense. I conclude by noting that it is a central question, for liberalism and politics in general. Tolerance is important because intolerance is important. “Anything Goes” is one of Cole Porter’s best songs, but is unlikely to become any country’s national anthem. The questions of what doesn’t go, and why, and how to prevent it from going any further, explain a great deal about the political ideologies of our era, as well as the premises on which social orders …

Alexander On Koppelman On Alexander, Larry Alexander

San Diego Law Review

In my book Is There a Right of Freedom of Expression?, I argued that liberalism, to the extent it is defined by a commitment to freedom of illiberal speech, illiberal religions, and illiberal associations, is at its core paradoxical. For, I argued, if liberalism is the correct political philosophy, it must regard illiberal thought and its manifestations in action and policy as fundamentally mistaken. And these mistaken illiberal views cannot be deemed by the liberal to have value as views, except perhaps for whatever instructive value they might have in getting people to see the truth of liberalism. When such …

The Machiavellian Case Against Legal Moralism, Luis Pereira Coutinho

San Diego Law Review

In this paper, “legal moralism” is to be understood in a wide sense as the promotion, outright coercive, or otherwise, of conceptions of the good by the state—assuming in a Kelsenian way that any state action means legal action. Under consideration is the possibility of excluding the good from the bounds of the law under a theory of political right of Machiavellian origin. Anticipating the conclusion, this paper will seek to verify whether the Machiavellian case is the only one excluding the good from the bounds of the law in a coherent manner, regardless of its merits and the inherent …

Dignity, Rights, And The Role Of Consent In German Criminal Law, Kapsaski Ifigeneia

San Diego Law Review

This Article addresses the issue of protecting human dignity as a ground and a threshold for criminalization. Human dignity can be either a limit to the scope of criminal law or a reason that justifies criminalization. This inquiry will be conducted through the referral to two German cases regarding consensual conduct. The first concerns consensual maiming and killing of a person and the second concerns consensual incest between two adult siblings. This Article does not further examine questions on the ontology of consent; neither does it examine questions regarding validity of consent as rational and voluntary. The issue discussed here …

Revisiting The Hart-Devlin Debate: At The Periphery And By The Numbers, James Allan

San Diego Law Review

We are not yet at the stage when trying to say something new about the well-known Hart-Devlin debate is like attempting to give a novel take on the Old Testament, or on William Shakespeare’s plays—or life for that matter—or even on the music of The Beatles. But then again those analogies are not wholly misplaced, at least not within legal philosophical circles in the common law world. So I was tempted to try my hand at some other topic falling under the aegis of “legal moralism” and leave Professor Hart and Lord Justice Devlin well enough alone. However, for good …

From Theory To Practice I: Passing Judgments Of Exploitation, Mathias Risse, Gabriel Wollner

San Diego Law Review

In an earlier work, we offered a view on how trade should be treated within a theory of global justice. We proposed an account of exploitation to spell out the nature of the obligations that arise from trading. That account greatly benefits from a detailed development for concrete cases. The goal of this study and its close companion is to explore how our philosophical views help formulate judgments on a range of moral problems that arise from trading and to identify responsibilities of various actors and inform policy responses to instances of exploitation in trade.

To that end we use …

Legitimacy And The International Trade Regime, Thomas Christiano

San Diego Law Review

Issues of global justice and trade are usually dealt with in terms of what a just system of trade is like and what the distribution of income, opportunities, or welfare ought to be. But the question I address and explore is what a legitimate way of making decisions in the international realm is. This issue has arisen acutely in the case of the formation of the World Trade Organization (WTO) and other international institutions. In particular, many have complained that developed countries engaged in hard bargaining with developing countries in the conferences that led up to the formation of the …

How To Construct Global Justice, Aaron James

San Diego Law Review

Do social relationships between people give rise to any demands of social justice whatsoever? If they do, are they of any practical significance given the relationships living human beings are actually in? And, might they be so significant as to ground a theory of global justice—if not the whole of anything rightly called justice, then at least of the central range of issues in world politics? Finally, could that perhaps be what a political philosophy of global justice should mainly be about?

Here, in bare outline, is how the answers to all of these questions might be “yes,” at least …

Two Conceptions Of Justice And The Dystopia Of Global Justice, Horacio Spector

San Diego Law Review

Political associations raise special questions of justice. Some authors contend that those special questions derive from characteristic features of the modern state. For instance, Thomas Nagel argues that two defining features of the political community justify associative redistributive duties that hold among its members but not among members and nonmembers. Those features are the fact that the political community exercises sovereign power over its members by resorting to the imposition of coercive rules and the fact that it exercises that power in the name of its members. In this paper, I will not challenge this assertion but will nonetheless argue …

Revising International Law: A Liberal Account Of Natural Resources, Fernando R. Tesón

San Diego Law Review

In this Article, I defend the view that natural resources originally belong to individuals who have legitimately established private property claims over them. Natural resources do not belong to a collective entity such as the people or the state. My argument is simple. Relying on the Lockean contractarian tradition, I argue that individuals must delegate any resource controlled by the state. This is because all powers of the state are, morally, delegated powers. A group’s claims over natural resources is entirely derivative of the original claims of its members. Only individuals can originally appropriate natural resources; only they have the …

Law’S Evolution And Law As Custom, William A. Edmundson

San Diego Law Review

normative, and law works by channeling custom-in-gross into progressively finer and more precise grooves. If there is normative moral value resident in the custom of elevating and following leaders, then that normativity ought to flow downstream into the finer channels officials carve and into the fresh territory they wish us to occupy. In places, that flow is too diluted, and normativity trails off. In places, officials direct the stream over a cliff, and it is no longer normative at all. In places, the stream is overtaken by stronger normative streams and can only make a difference yet farther downslope, where …

Do People Obey The Law?, Frederick Schauer

San Diego Law Review

It is customary in a symposium honoring a book as valuable as Laurence Claus’s for the commentators to begin by noting their general agreement with the author’s thesis and then explaining that, in the spirit of academic engagement, they will focus on one small but interesting area in which the author and the commentator disagree. On this occasion, however, it seems more appropriate to reverse that approach. For reasons I will make clear, I am in substantial disagreement with Claus’s normative argument against authority. Unlike Claus, I believe that “because I said so” is often, especially when backed by the …

Freedom, Benefit And Understanding: Reflections On Laurence Claus’S Critique Of Authority, John Finnis

San Diego Law Review

With wide-ranging and illuminating determination, Law’s Evolution and Human Understanding offers a refutation of the illusion of authority. No one, it rightly contends, has the right to be obeyed. Still less, as it correctly says, do any persons have the right that their say so be obeyed because they said so. Given the book’s stipulative definition of “authority,” these truths entail that authority is an illusion, and provide some important premises for a plausible further conclusion or pair of conclusions: it is harmful, both in practice and in theory, to say that some person or body has authority (“the rule …

Prediction Theories Of Law And The Internal Point Of View, Michael S. Green

San Diego Law Review

In my remarks here, I will try to defend Claus’s iconoclastic tone by identifying the important difference between prediction theories of law and Hart’s. I start with a number of distinctions. By a prediction theory of law I mean a theory under which a statement about the law, such as “The Securities Exchange Act is valid law,” is a prediction of the behavior and attitudes of people in a community. In addition to offering this theory, Claus tacks on what I will call a prediction theory of lawmaking, under which the words uttered or written by lawmakers are themselves essentially …

Law’S Evolution And Human Understanding, Laurence Claus

San Diego Law Review

What a privilege and delight it was to welcome the participants to this conference. I am deeply grateful to the outside commentators, Bill Edmundson, John Finnis, Michael Steven Green, Mark Greenberg, Fred Schauer, and Larry Solum, for contributing so generously. My thanks also go to the many faculty colleagues who joined in the celebration, and particularly to Larry Alexander for convening the event and leading the proceedings, as he so often does, and does so well. This response to the insightful commentaries on Law’s Evolution and Human Understanding grows out of three propositions: law comes first, law is signals, law …

Should Public Law Accommodate The Claims Of Conscience?, William A. Galston

San Diego Law Review

In the end, it seems to me, the matter boils down to a single issue. Many individuals consider themselves bound by two sources of authority, public law and conscience, whose demands do not always coincide. Is the state prepared to take cognizance of this fact, and if so, how should it respond? Unlike other regimes, liberal democracies should not find these questions unduly challenging. To be a liberal state is to recognize limits on the legitimate scope of public authority; to be a liberal democracy is to recognize limits on the authority of the people and on the writ of …

False Speech: Quagmire?, Christopher P. Guzelian

San Diego Law Review

Recently decided cases in several Federal Courts of Appeals and the United States Supreme Court show that First Amendment false speech case law is contradictory and unpredictable. This Article gives examples and concludes that legal liability for false speech will continue to be arbitrary and even susceptible to intentionally unjust decisionmaking if judges and juries individually and collectively disregard or downplay the necessity of an honest search for truth under the guise of tolerance and evenhandedness. If Americans wish to avoid an anything-goes “quagmire” about truth, they must—despite inevitable resistance in a civilization increasingly rife with skeptics—undergo transformations of their …

The Morality Of Human Rights, Michael J. Perry

San Diego Law Review

My discussion of the morality of human rights in this Article presupposes that the reader is familiar with the internationalization of human rights: the growing international recognition and protection, in the period since the end of the Second World War, of certain rights as human rights. The Appendix to this Article is for readers not familiar with the internationalization of human rights. I begin, in the first Part of the Article, by explaining what the term human right means in the context of the internationalization of human rights. I also explain both the sense in which some human rights are, …

Does The Existing Human Rights Regime Have Political Authority?, Christopher Heath Wellman

San Diego Law Review

In this Article I consider whether the existing international legal human rights regime enjoys political authority over sovereign states. In particular, I explore whether, just as states can cite their role as the primary institutions that protect human rights in order to justify their claim to authority over their citizens, perhaps the current human rights regime might plausibly cite its secondary role in securing human rights in order to ground its authority over these states.