Law Commons^™

The 'Authority' Of Law: Joseph Raz Reconsidered, Andrew Stumpff Morrison

Law & Economics Working Papers

The article presents a critical reassessment of the legal philosophical writings of Joseph Raz. The critique develops from the author’s previous argument that law is – contra recent near-consensus – best understood as “the command of the sovereign, backed by force.” Given that this is the distinctly defining feature of law, Raz’s extended preoccupation with “reasons for obeying law” is misplaced and even nonsensical.

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

All Faculty Scholarship

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work …

The Moral Reading As A Practice: A Response To Three Comments On Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

In recent years, many originalists have claimed a monopoly on concern for fidelity in constitutional interpretation. In my book, Fidelity to Our Imperfect Constitution, 1 I reject originalisms—whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a “moral reading” of the United States Constitution, or a “philosophic approach” to constitutional interpretation. I refer to conceptions of the Constitution as embodying abstract moral and political principles—not codifying concrete historical rules or practices—and of interpretation of those principles as requiring normative judgments about how they are best understood—not merely historical research to discover relatively …

The New Eliminativism, Michael S. Green

Popular Media

No abstract provided.

A Hedgehog's Unity Of Value, Joseph Raz

Faculty Scholarship

The paper examines various interpretations of Dworkin’s thesis of the Unity of Value, as expressed and defended in his book Justice for Hedgehogs. Dworkin’s arguments for various aspects of his unity of value thesis are relied on in interpreting the which is then compared with versions of value pluralism.

Dworkin's Perfectionism, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

In this essay, we shall interpret Dworkin's constitutional theory in light of three varieties of perfectionism: (1) the idea that government should undertake a formative project of inculcating civic virtues and encouraging responsibility in the exercise of rights; (2) the idea that we should interpret the American Constitution so as to make it the best it can be; and (3) the idea that we should defend a Constitution-perfecting theory that would secure not only procedural liberties essential for democratic self-government but also substantive liberties essential for personal self-government. We shall identify three gaps left by Dworkin's work and sketch how …

Corporate Conscience And The Contraceptive Mandate: A Dworkinian Reading, Linda C. Mcclain

Faculty Scholarship

When a closely-divided U.S. Supreme Court decided Burwell v. Hobby Lobby (2014), upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (“contraceptive mandate”) of the Patient Protection and Affordable Care Act of 2010 (“ACA”), sadly missing in the flurry of commentary was the late Ronald Dworkin’s assessment. This essay asks, “What would Dworkin do?,” if evaluating that case as well as Wheaton College v. Burwell, in which, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted Wheaton College emergency relief from complying with ACA’s accommodation procedure for religious nonprofit organizations who object to …

Fit, Justification, And Fidelity In Constitutional Interpretation, James E. Fleming

Faculty Scholarship

Ronald Dworkin famously argued that the best interpretation of a Constitution should both fit and justify the legal materials, for example, the text, original meaning, and precedents. In his recent book, Against Obligation (Harvard University Press, 2012), Abner S. Greene provocatively and creatively bucks the tendencies of constitutional theorists to profess fidelity with the past in constitutional interpretation. He rejects originalist understandings of obligation to follow original meaning in interpreting the Constitution. And indeed he rejects interpretive obligation to follow precedent. In this Essay I focus on Greene’s arguments against interpretive obligation to the past, in particular, his argument that …

The Legacy Of Ronald Dworkin (1931-2013): A Legal Theory And Methodology For Hedgehogs, Hercules, And One Right Answers, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this paper the author addresses Ronald Dworkin’s work and assesses his legacy to legal, moral and political philosophy. And so, considers among its merits having developed an original legal theory with its distinctive methodology, which not only has transcended the Natural Law and Legal Positivism dichotomy, but also has reintegrated law into a branch of political morality and defended as a corollary the one right answer thesis. Hence, commences by identifying the dworkininan challenge; continues by introducing some basic definitions and distinctions between jurisprudence, legal philosophy (or philosophy of law) and legal theory (or theory of law), on the …

Introduction, Symposium On Ronald Dworkin's Religion Without God, James E. Fleming

Faculty Scholarship

Boston University School of Law and the Boston University Law Review are proud to publish this Symposium on Dworkin’s final book, Religion Without God (Harvard University Press, 2013), as a sequel to our 2009 Symposium on his Justice for Hedgehogs. The Symposium includes an introduction and eulogy by James E. Fleming and contributions by a number of the most distinguished scholars of law and religion in the United States and the United Kingdom: Jeremy Waldron, Stephen L. Carter, Paul Horwitz, Andrew Koppelman, Cécile Laborde, Linda C. McClain, Micah Schwartzman, and Steven D. Smith.

Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain

Faculty Scholarship

This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …

Living Originalism And Living Constitutionalism As Moral Readings Of The American Constitution, James E. Fleming

Faculty Scholarship

With this event – A Symposium on Jack Balkin’s Living Originalism and David Strauss’s The Living Constitution – we launch a Boston University School of Law series of symposia on significant recent books in law. The distinctive format is to pick two significant books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty to write an essay on one or both books.

What are the justifications for pairing Balkin’s Living Originalism1 and Strauss’s The Living Constitution2 in …

Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends …

The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod

Faculty Articles

Recent controversies, such as enactment of an individual mandate to purchase health insurance and the legalization of assisted suicide in Washington and Montana, have renewed the war over personal autonomy. Debates about the value and limits of personal autonomy also play major roles in the controversies over abortion, same-sex intimacy, and same-sex marriage. On one side of the autonomy war, advocates of unfettered individual freedom assert that by her un-coerced and autonomous choice, the individual person determines the value of human goods such as life, health, and marriage.

On the other side, proponents of strong government restrictions on personal choice …

Justice For Hedgehogs, Robert E. Rodes

Journal Articles

Professor Dworkin begins this complex and ambitious book with a chapter called "Baedeker" after the nineteenth century guidebooks. In it, he gives an overview of his project, which is to show "the unity of value." The "title refers to a line by an ancient Greek poet, Archilochus, that Isaiah Berlin made famous for us. The fox knows many things, but the hedgehog knows one big thing. Value is one big thing" (1).

He articulates his overarching value in terms of human dignity: "[W]e each have a sovereign ethical responsibility to make something of value of our own lives, as a …

Taking Responsibilities As Well As Rights Seriously, James E. Fleming

Faculty Scholarship

In his first book, Ronald Dworkin famously called for “taking rights seriously” by treating them as “trumps” over considerations of utility or the general welfare.1 Taking Rights Seriously (along with other works) provoked calls for taking responsibilities as well as (or instead of) rights seriously, or for engaging in “responsibility talk,” not just “rights talk.”2 In Life’s Dominion, Dworkin himself got on the responsibility bandwagon in justifying the right to procreative autonomy and the right to die.3 He countenanced that government may encourage women to take the decision whether to have an abortion responsibly, so long as it does not …

Justice And Elegance For Hedgehogs - In Life, Law, And Literature, Linda C. Mcclain

Faculty Scholarship

At a time when value pluralism and even value polarization seem to be undeniable facts of contemporary life, Ronald Dworkin unrepentantly defends the unity of value. His point of departure is the Greek poet Archilochus’s saying, “The fox knows many things, but the hedgehog knows one big thing,” made famous in liberal philosopher Isaiah Berlin’s essay, The Hedgehog and the Fox. In his forthcoming book, Justice for Hedgehogs, Dworkin argues for the integration of ethics, personal morality, and political morality and contends that law is a branch of political morality that in turn is a branch of morality, broadly understood. …

Rights, Harms, And Duties: A Response To Justice For Hedgehogs, Robin West

Georgetown Law Faculty Publications and Other Works

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of …

The Unity Of Interpretation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is interpretation? One can imagine a range of answers to this question. One answer might begin with the observation that the English word “interpretation” is used to refer to a variety of human activities. Translators at the United Nations interpret remarks made in French when they offer an English translation. Literary critics interpret novels when they investigate the deep and sometimes unconscious motivations of the author. Conductors interpret a score when they make decisions about meter, tempo, and dynamic range. Actors interpret a screenplay when they improvise new lines based on their understanding of the characters. Judges interpret statutes …

Human Rights For Hedgehogs?: Global Value Pluralism, International Law, And Some Reservations Of The Fox, Robert D. Sloane

Faculty Scholarship

This essay, a contribution to the Boston University Law Review’s symposium on Ronald Dworkin’s forthcoming book, Justice for Hedgehogs, critiques the manuscript’s account of international human rights on five grounds. First, it is vague: it fails to offer much if any guidance relative to many of the most difficult concrete issues that arise in the field of international human rights law and policy - precisely the circumstances in which international lawyers might benefit from the guidance that moral foundations supposedly promise. It is also troubling, and puzzling given Dworkin’s well-known commitment to the right-answer thesis, that his account of human …

The Place Of History And Philosophy In The Moral Reading Of The American Constitution, James E. Fleming

Faculty Scholarship

Dworkin argues that commitment to interpretive fidelity requires that we recognize that the Constitution embodies abstract moral principles rather than laying down a particular historical conception, and that interpreting those principles requires fresh judgments of political theory about how they are best understood. This interpretive strategy — Dworkin's ‘moral reading’ of the Constitution — stands in opposition to the narrow originalists' claim that interpretive fidelity requires following the rules laid down by the framers of the Constitution. Some theorists have responded to the originalists by attempting to carve out an intermediate theory between narrow originalism and the moral reading. Dworkin …

Impartiality In Judicial Ethics: A Jurisprudential Analysis, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Red Versus Blue (And Purple) States In The Same-Sex Marriage Debate: From Values Polarization To Common Ground?, Linda C. Mcclain

Faculty Scholarship

What is the role of courts in circumstances of "values polarization"? The framing of this question brings to mind, but differs from, some familiar inquiries about the judicial role in circumstances of conscientious moral disagreement or value pluralism and debates about liberty, morality, and community. Using the conflict over whether civil marriage should extend to same-sex couples as an example, I contrast two recent analyses of values polarization and its implications for finding agreement, Ronald Dworkin’s book, Is Democracy Possible Here?, and June Carbone and Naomi Cahn's project, Red Families v. Blue Families. Dworkin's strategy is to identify shared principles …

Jurisprudence And Judicial Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

The fundamental value in judicial ethics is impartiality. This means that a judge is duty-bound to decide cases on their merits, be open to persuasion, and not influenced by improper considerations. The paradigm case of unethical behavior by a judge is taking a bribe to decide a case in favor of one of the parties. This kind of corruption, which is fortunately rare in many developed countries, is also relatively uninteresting from an intellectual point of view. A more difficult case of failure of impartiality, conceptually speaking, involves a judge who relies on extra-legal factors as the basis for a …

Institutional And Individual Justification In Legal Ethics: The Problem Of Client Selection, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Civil Obedience, W. Bradley Wendel

Cornell Law Faculty Publications

Discussions of legal ethics generally assume that lawyers should deliberate straightforwardly on the basis of reasons to act or refrain from acting. This model of deliberation fails to account for the role of the law in resolving normative disagreement and coordinating social activity by people who do not share comprehensive ethical doctrines. The law represents a collective decision about what citizens ought to do, which replaces the reasons individuals would otherwise have to act. This Article contends that legal ethics ought to be understood as an aspect of this theory of the authority of law. On this account, lawyers have …

The Priority Of Respect: How Our Common Humanity Can Ground Our Individual Dignity, Richard Stith

Law Faculty Publications

In this essay, we notice that the priority of persons, the unbridgeable political gap between persons and mere things, corresponds to a special sort of moral and legal treatment for persons, namely, as irreplaceable individuals. Normative language that conflates the category of person with fungible kinds of being can thus appear to justify destroying and replacing human beings, just as we do with things. Lethal consequences may result, for example, from a common but improper extension of the word “value” to persons. The attitude and act called “respect” brings forth much more adequately than “value” the distinctively individual priority of …

Procedural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This article begins in part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …

Reason And Authority In Legal Ethics, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Liberalism And The Establishment Clause, Steven H. Shiffrin

Cornell Law Faculty Publications

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities.

Although government may promote a particular conception of the good life, …