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Full-Text Articles in Law
Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen
Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen
Book Reviews
This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss …
Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder
Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder
Journal Articles
This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …
Mastery, Slavery, And Emancipation, Guyora Binder
Mastery, Slavery, And Emancipation, Guyora Binder
Journal Articles
Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …