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Ethics and Political Philosophy

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Full-Text Articles in Law

Of Law And Other Artificial Normative Systems, Mitchell N. Berman Jan 2019

Of Law And Other Artificial Normative Systems, Mitchell N. Berman

Faculty Scholarship at Penn Law

Different theories of law are situated within different pictures of our normative landscape. This essay aims to make more visible and attractive one picture that reflects basic positivist sensibilities yet is oddly marginalized in the current jurisprudential literature. The picture that I have in mind tries to vindicate surface appearances. It maintains that the social world is densely populated by countless normative systems of human construction (“artificial normative systems”) whose core functions are to generate and maintain norms (oughts, obligations, powers, rights, prohibitions, and the like). The norms that these systems output are conceptually independent from each other, and may ...


Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen Dec 2012

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

Faculty Scholarship at Penn Law

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a ...


Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister Apr 2011

Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister

Faculty Scholarship at Penn Law

Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan’s recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan’s new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention ...


James Wilson And The Scottish Enlightenment, William Ewald Apr 2010

James Wilson And The Scottish Enlightenment, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


The Perils Of Forgetting Fairness, Michael B. Dorff, Kimberly Kessler Ferzan Jan 2009

The Perils Of Forgetting Fairness, Michael B. Dorff, Kimberly Kessler Ferzan

Faculty Scholarship at Penn Law

No abstract provided.


Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker Jan 2008

Liability Insurance, Moral Luck, And Auto Accidents, Tom Baker

Faculty Scholarship at Penn Law

Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck occurs in the hypotheticals because (and to the extent that) two equally careless drivers are assessed differently because only one of them caused an accident. This article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the ...


The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson Apr 2007

The Role Of Moral Philosophers In The Competition Between Deontological And Empirical Desert, Paul H. Robinson

Faculty Scholarship at Penn Law

Desert appears to be in ascendence as a distributive principle for criminal liability and punishment but there is confusion as to whether it is a deontological or an empirical conception of desert that is or should be promoted. Each offers a distinct advantage over the other. Deontological desert can transcend community, situation, and time to give a conception of justice that can be relied upon to reveal errors in popular notions of justice. On the other hand, empirical desert can be more easily operationalized than can deontological desert because, contrary to common wisdom, there is a good deal of agreement ...


The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick Jan 2007

The Rhetoric Of Anti-Relativism In A Culture Of Certainty, Howard Lesnick

Faculty Scholarship at Penn Law

No abstract provided.


A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein Oct 2006

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories ...


Hobbes And The Internal Point Of View, Claire Oakes Finkelstein Jan 2006

Hobbes And The Internal Point Of View, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Law, Ethics And Mystery, Geoffrey C. Hazard Jr. Jan 2005

Law, Ethics And Mystery, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Ripstein, Rawls, And Responsibility, Stephen R. Perry Jan 2004

Ripstein, Rawls, And Responsibility, Stephen R. Perry

Faculty Scholarship at Penn Law

No abstract provided.


No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick Jan 2003

No Other Gods: Answering The Call Of Faith In The Practice Of Law, Howard Lesnick

Faculty Scholarship at Penn Law

No abstract provided.


Harm, History, And Counterfactuals, Stephen R. Perry Jan 2003

Harm, History, And Counterfactuals, Stephen R. Perry

Faculty Scholarship at Penn Law

No abstract provided.


Privacy Isn't Everything: Accountability As A Personal And Social Good, Anita L. Allen Jan 2003

Privacy Isn't Everything: Accountability As A Personal And Social Good, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Method And Principle In Legal Theory, Stephen R. Perry Jan 2002

Method And Principle In Legal Theory, Stephen R. Perry

Faculty Scholarship at Penn Law

No abstract provided.


Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein Jan 2002

Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Two Men On A Plank, Claire Oakes Finkelstein Jan 2001

Two Men On A Plank, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Positivism And The Notion Of An Offense, Claire Oakes Finkelstein Jan 2000

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under ...


Equality And Affiliation As Bases Of Ethical Responsibility, Geoffrey C. Hazard Jr. Jan 2000

Equality And Affiliation As Bases Of Ethical Responsibility, Geoffrey C. Hazard Jr.

Faculty Scholarship at Penn Law

No abstract provided.


Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz Jan 1999

Preempting Oneself: The Right And The Duty To Forestall One's Own Wrongdoing, Leo Katz

Faculty Scholarship at Penn Law

No abstract provided.


Lying To Protect Privacy, Anita L. Allen Jan 1999

Lying To Protect Privacy, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Hart's Methodological Positivism, Stephen R. Perry Jan 1998

Hart's Methodological Positivism, Stephen R. Perry

Faculty Scholarship at Penn Law

No abstract provided.


The Religious Lawyer In A Pluralist Society, Howard Lesnick Jan 1998

The Religious Lawyer In A Pluralist Society, Howard Lesnick

Faculty Scholarship at Penn Law

No abstract provided.


Hobbes, Formalism, And Corrective Justice, Anita L. Allen, Maria H. Morales Jan 1992

Hobbes, Formalism, And Corrective Justice, Anita L. Allen, Maria H. Morales

Faculty Scholarship at Penn Law

No abstract provided.


The Wellsprings Of Legal Responses To Inequality: A Perspective On Perspectives, Howard Lesnick Jan 1991

The Wellsprings Of Legal Responses To Inequality: A Perspective On Perspectives, Howard Lesnick

Faculty Scholarship at Penn Law

No abstract provided.


Reply To Cornel West, William Ewald Jan 1988

Reply To Cornel West, William Ewald

Faculty Scholarship at Penn Law

No abstract provided.


Look Before You Leap: Some Cautionary Notes On Civic Republicanism, Michael A. Fitts Jan 1988

Look Before You Leap: Some Cautionary Notes On Civic Republicanism, Michael A. Fitts

Faculty Scholarship at Penn Law

No abstract provided.


Unger's Philosophy: A Critical Legal Study, William Ewald Jan 1988

Unger's Philosophy: A Critical Legal Study, William Ewald

Faculty Scholarship at Penn Law

Of all the scholars associated with the Critical Legal Studies movement, none has garnered greater attention or higher praise than Roberto Unger of Harvard Law School. In this Article, William Ewald argues that Professor Unger's reputation as a brilliant philosopher of law is undeserved. Despite the seeming erudition of his books, Professor Unger's work displays little familiarity with the basic philosophical literature, and the philosophical, legal, and political analysis in those works-in particular, the celebrated critique of liberalism in Knowledge and Politics-is so riddled with logical and historical errors as to be unworthy of serious scholarly attention.


Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton Jan 1985

Manners, Metaprinciples, Metapolitics And Kennedy's Form And Substance, William W. Bratton

Faculty Scholarship at Penn Law

No abstract provided.