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Jurisprudence

Selected Works

Stephen M. Feldman

Articles 1 - 6 of 6

Full-Text Articles in Law

Stephenmfeldmanpostmodern.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmanpostmodern.Pdf, Stephen M. Feldman

Stephen M. Feldman

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades.  Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances.  Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self.   But the three traditional rationales are incompatible with our digital age.  In particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society.  The time for a new rationale has arrived.  The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

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Stephenmfeldmanthereturno.Pdf, Stephen M. Feldman Dec 2016

Stephenmfeldmanthereturno.Pdf, Stephen M. Feldman

Stephen M. Feldman

Postmodern jurisprudence was all the rage in the 1990s.  Two of the most renowned postmodernists, Stanley Fish and Pierre Schlag, both persistently criticized mainstream legal scholars for believing they were modernist selves--independent, sovereign, and autonomous agents who could remake the social and legal world merely by writing a law review article.  Then Fish and Schlag turned on each other.  Each attacked the other for making the same mistake: harboring a modernist self.  I revisit this skirmish for two reasons.  First, it helps explain the current moribund state of postmodern jurisprudence.  If two of the leading postmodernists could not avoid embedding …

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From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman Dec 1996

From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman

Stephen M. Feldman

This article explains the crucial differences between premodernism and modernism. A distinctive feature of premodernism was an abiding faith in nature or God as a stable and foundational source of meaning and value. When premodernism gave way to modernism, the commitment to foundationalism remained intact. Modernists believed that knowledge must be firmly grounded on an objective foundation. A crucial distinction between modernism and premodernism, however, lay in their respective ideas of foundations. Whereas premodernists readily accepted God and nature as foundational sources for value and knowledge, modernists rejected religious, natural, and other traditional footings and searched for some alternative foundation. …

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The Politics Of Postmodern Jurisprudence, Stephen M. Feldman Dec 1995

The Politics Of Postmodern Jurisprudence, Stephen M. Feldman

Stephen M. Feldman

Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence is either conservative or apolitical because it lacks the foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. Postmodern interpretivism does not lead to an infinite regress of interpretations that undermines …

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The New Metaphysics: The Interpretive Turn In Jurisprudence, Stephen M. Feldman Dec 1990

The New Metaphysics: The Interpretive Turn In Jurisprudence, Stephen M. Feldman

Stephen M. Feldman

A debate between realists and antirealists has characterized western metaphysics. While metaphysical realists ground existence on an objective world, antirealists ground existence on a thinking subject and human culture. The argument in jurisprudence, as elsewhere, is that either we are capable of objective knowledge or we are doomed to free-floating subjectivism. We demand the impossible -- absolute objectivity -- to avoid the catastrophic -- unconstrained subjectivity. The interpretive turn attempts to move beyond this insoluble dilemma, the either/or of objectivity and subjectivity. Thus, in jurisprudence, the interpretive turn is well worth taking if only because it offers the possibility of …

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Felix S. Cohen And His Jurisprudence: Reflections On Federal Indian Law, Stephen M. Feldman Dec 1985

Felix S. Cohen And His Jurisprudence: Reflections On Federal Indian Law, Stephen M. Feldman

Stephen M. Feldman

In 1942, Felix S. Cohen published the Handbook of Federal Indian Law, the first synthesis of that field. At that time, Cohen was renowned as a legal philosopher, a member of the American legal realist movement, and a leading advocate for Native Americans. The primary purpose of this Article is to relate Cohen's realist jurisprudence to the development of federal Indian law. The thesis is that Cohen's jurisprudence profoundly affected his writing of the Handbook, which, in turn, profoundly affected the development of contemporary federal Indian law. The United States Supreme Court has effectively adopted Cohen's realist method for resolving …

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