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Full-Text Articles in Law
May The State Punish What It May Not Prevent?, Gabriel S. Mendlow
May The State Punish What It May Not Prevent?, Gabriel S. Mendlow
Articles
In Why Is It Wrong To Punish Thought? I defended an overlooked principle of criminalization that I called the Enforceability Constraint. The Enforceability Constraint holds that the state may punish transgressions of a given type only if the state in principle may forcibly disrupt such transgressions on the ground that they are criminal wrongs. As I argued in the essay, the reason why the state is forbidden from punishing thought is that the state is forbidden from forcibly disrupting a person’s mental states on the ground that they are criminally wrongful (as opposed to, say, on the ground that they …
Democracy, Law, Compliance, Don Herzog
Democracy, Law, Compliance, Don Herzog
Articles
Professors Schauer and McAdams both seek a more or less sweepingly general theory of why we obey the law. But we should split, not lump. There are different reasons different actors in different social settings obey different laws–not only, but not least, out of regard for democratic decision making.
Comments On The Morality Of Freedom, Joseph Raz
Comments On The Morality Of Freedom, Joseph Raz
Faculty Scholarship
The paper mixes comments on the ambitions that motivated writing The Morality of Freedom with observations on comments on the book, made at a conference in Jerusalem in 2016, by Japa Pallikkathayil, Avishai Margalit, Michael Otsuka, Jon Quong, Daniel Viehoff, Asaf Sharon and Arudra Burra. It acknowledges some of the critical points made while resisting others. Its strives to combine clarification of some of the themes in the book with recognition that its ideas require further development, and can be developed in various directions.
Blame And The Criminal Law, David Lefkowitz
Blame And The Criminal Law, David Lefkowitz
Philosophy Faculty Publications
Many retributivists appear to presume that the concept of blame that figures in their accounts of just punishment is the same one people employ in their interpersonal moral relationships. David Shoemaker contends that this presumption is mistaken. Moral blameworthiness, he maintains, tracks only the meaning of a person's action––his reasons for acting as he did––while criminal blameworthiness, which he equates with liability to punishment, tracks only the impermissibility of an agent's action. I contest the second of these two claims, and in doing so defend the retributivists’ presumption. First, I argue that the purpose of a criminal trial can be …
Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis
Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John Finnis
Journal Articles
Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding (New York: Oxford University Press, 2012), this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority of rule makers is never peremptory in a binary (all or nothing) as …
Reading John Noonan, Jospeh Vining
Reading John Noonan, Jospeh Vining
Articles
John Noonan is a giant in American law and legal practice -- a distinguished legal historian and a true judge. His reflections on the nature of law have a special importance. This essay is a comment on basic elements in his thought.
Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker
Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker
All Faculty Scholarship
For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to …
The Creation Of Authority In A Sermon By Saint Augustine, James Boyd White
The Creation Of Authority In A Sermon By Saint Augustine, James Boyd White
Book Chapters
My way of honoring Joe today will not be to describe or extol his achievements directly but to try to show something of what I have learned from him, particularly in the way I approach a new text and problem, in this case the creation of authority in one of Augustine's sermons.
Assessing Law’S Claim To Authority, Bas Van Der Vossen
Assessing Law’S Claim To Authority, Bas Van Der Vossen
Philosophy Faculty Articles and Research
The idea that law claims authority (LCA) has recently been forcefully criticized by a number of authors. These authors present a new and intriguing objection, arguing that law cannot be said to claim authority if such a claim is not justified. That is, these authors argue that the view that law does not have authority viciously conflicts with the view that law claims authority. I will call this the normative critique of LCA. In this article, I assess the normative critique of LCA, focusing predominantly on the arguments presented by its most incisive proponent Philip Soper. I defend a …
The Role Of Authority, Scott A. Hershovitz
The Role Of Authority, Scott A. Hershovitz
Articles
The most influential account of authority – Joseph Raz's service conception – is an account of the role of authority, in that it is an account of its point or function. However, authority does not have a characteristic role to play, and even if it did, the ability to play a role is not, by itself, sufficient to establish authority. The aim of this essay is to shift our focus from roles that authority plays to roles that people play – which we can also call roles of authority – such as chef, teacher, and parent. To justify authority, we …
The Creation Of Authority In A Sermon By St. Augustine, James Boyd White
The Creation Of Authority In A Sermon By St. Augustine, James Boyd White
Articles
My way of honoring Joe today will not be to describe or extol his achievements directly but to try to show something of what I have learned from him, particularly in the way I approach a new text and problem, in this case the creation of authority in one of Augustine's sermons.
On Respect, Authority & Neutrality: A Response, Joseph Raz
On Respect, Authority & Neutrality: A Response, Joseph Raz
Faculty Scholarship
I owe a great debt to Professors Wall, Darwall, and Green for their willingness to challenge, develop, and question some of my publications, which forced me to confront a few of the shortcomings in my views and, I hope, to clarify and improve some of them. Given the diversity of the topics, I respond to each separately. I aimed to avoid minor points and to write only on matters which affect the cogency of my views or theirs on important issues.1 For that reason, as well as for reasons of space, not all the issues they raise are dealt …
Authority And Reality, Joseph Vining
Authority And Reality, Joseph Vining
Book Chapters
Imagination has been introduced as a term of art in discussion of the social and political world. Some years ago James Boyd White turned to it in The Legal Imagination, his monumental work on the foundations of secular law and legal practice. A prominent example of its use today is Charles Taylor's Modern Social Imaginaries, tracing changes in the common mind leading to what we now call modernity. The term can have a large scope and at the same time a rather definite meaning. "Imagination" is at the center of Mark Massa's comments on the contrarian position of the Catholic …
The Problem Of Authority: Revisiting The Service Conception, Joseph Raz
The Problem Of Authority: Revisiting The Service Conception, Joseph Raz
Faculty Scholarship
The problem I have in mind is the problem of the possible justification of subjecting one's will to that of another, and of the normative standing of demands to do so. The account of authority that I offered, many years ago, under the title of the service conception of authority, addressed this issue, and assumed that all other problems regarding authority are subsumed under it. Many found the account implausible. It is thin, relying on very few ideas. It may well appear to be too thin, and to depart too far from many of the ideas that have gained currency …
The Empty Circles Of Liberal Justification, Pierre Schlag
The Empty Circles Of Liberal Justification, Pierre Schlag
Publications
No abstract provided.
Plato's 'Crito': The Authority Of Law And Philosophy (Symposium On Law, Literature, And The Humanities), James Boyd White
Plato's 'Crito': The Authority Of Law And Philosophy (Symposium On Law, Literature, And The Humanities), James Boyd White
Articles
My talk today will consist primarily of the interpretation of one of the dialogues of Plato, called the Crito. It will not have very much about law in it, and you may well wonder why such a lecture is being given in a law school. Let me begin by saying a word or two in response to that sensible question, as a way of framing the reading that follows.
Reasons, Authority, And The Meaning Of 'Obey': Further Thoughts On Raz And Obedience To Law, Donald H. Regan
Reasons, Authority, And The Meaning Of 'Obey': Further Thoughts On Raz And Obedience To Law, Donald H. Regan
Articles
I recently published a long article' discussing a variety of topics from Joseph Raz's The Morality of Freedom.2 The article was part of a symposium on Raz's work in the Southern California Law Review. Raz responded' to the articles in that symposium, including my own. From a perspective which surveys the whole range of views on political philosophy, Raz's view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But …
Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan
Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan
Articles
Joseph Raz's The Morality of Freedom1 is full of subtle, original, and thought provoking arguments. It also manifests abundantly Raz's philosophical good sense and sensitivity to the complexities of the moral life. These are reasons enough to class it with the handful of genuinely important books whose appearance in the last two decades has constituted a renaissance in political philosophy. But in my opinion, Raz has another, and even stronger claim on our attention: He comes closer to the truth about political morality than anyone has for nearly a century. (Possibly much longer, but we need not attempt to decide …
Legal Affinities, Joseph Vining
Legal Affinities, Joseph Vining
Articles
Not long ago, any question of the kind "How may theology serve as a resource in understanding law?" would have been hardly conceivable among lawyers. When Lon Fuller brought out his first book in 1940, The Law in Quest of Itself, he could think of no better way of tagging his adversary the legal positivist than to note a "parallel between theoretical theology and analytical jurisprudence." Two decades later, in the name of realism, Thurman Arnold dismissed Henry Hart's non-positivist jurisprudence in harsh terms. A master of the cutting phrase, he confidently entitled his attack "Professor Hart's Theology." Two decades …
Law And Enchantment: The Place Of Belief, Joseph Vining
Law And Enchantment: The Place Of Belief, Joseph Vining
Articles
The question I wish to raise is whether one must believe what one says when one makes a statement of law. The language of belief that we know, and from which moral discourse and the moral never stray far: do judges, lawyers, law participate in it? Any such question is but an aspect of a larger question, indeed issue, of what we may call the objectivity of legal language. It is raised perhaps most acutely by the broad claims now being made for artificial intelligence and in particular for the computer programming of legal advice (as a species of what …