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Full-Text Articles in Law
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Working Paper Series
This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably …
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Working Paper Series
This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …
Comparative Constitutional Epics, Penelope J. Pether
Comparative Constitutional Epics, Penelope J. Pether
Working Paper Series
This essay takes up Robert Cover’s account, in “Nomos and Narrative” of Constitutional Epics. Ranging across legal and literary texts including Toni Morrison’s Beloved, David Malouf’s An Imaginary Life, the Canadian Arar Commission Report, and Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, it concludes that what comparative study of Constitutions and their Epics might yield are brutal truths and the judgments of history, but also insights into how we might make of that unpromising material a nomos and a …
Cautionary Tales, Penelope J. Pether
Cautionary Tales, Penelope J. Pether
Working Paper Series
“This is a review essay of Nan Seuffert’s Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Ashgate, 2006), a critical, interdisciplinary study of the construction of national identity of Aotearoa New Zealand, which unearths the raced and gendered constitution of this postcolonial nation state.”