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Full-Text Articles in Law
Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, Sean Hannon Williams
Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, Sean Hannon Williams
Michigan Law Review
A review of Don Herzog, Defaming the Dead.
How Feminist Theory Became (Criminal) Law: Tracing The Path To Mandatory Criminal Intervention In Domestic Violence Cases, Claire Houston
How Feminist Theory Became (Criminal) Law: Tracing The Path To Mandatory Criminal Intervention In Domestic Violence Cases, Claire Houston
Michigan Journal of Gender & Law
Our popular understanding of domestic violence has shifted significantly over the past forty years, and with it, our legal response. We have moved from an interpretation of domestic violence as a private relationship problem managed through counseling techniques to an approach that configures domestic violence first and foremost as a public crime. Mandatory criminal intervention policies reflect and reinforce this interpretation. How we arrived at this point, and which understanding of domestic violence facilitated this shift, is the focus of this Article. I argue that the move to intense criminalization has been driven by a distinctly feminist interpretation of domestic …
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
On Strict Liability Crimes: Preserving A Moral Framework For Criminal Intent In An Intent-Free Moral World, W. Robert Thomas
Michigan Law Review
The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral …
The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine
The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine
Articles
Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …
Recognition Of Group Rights As Requisite To Substantive Equality Goals, Kathrina Szymborski
Recognition Of Group Rights As Requisite To Substantive Equality Goals, Kathrina Szymborski
Michigan Law Review First Impressions
Courts, legislatures, and scholars are increasingly turning away from traditional Aristotelian thinking in favor of a substantive, pro-active approach to equality. Under the substantive approach, the identification and eradication of systematic discrimination replace an adherence to neutral principles. This Comment argues that while a substantive approach is the most effective way to bring about true equality, it will not succeed unless it centers on protecting group rights. State decision-makers and international human rights advocates must focus on group experiences in order to create societies where no one is favored based on immutable characteristics.
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
A Virtuous State Would Not Assign Correctional Housing Based On Ability To Pay, Bradley W. Moore
Michigan Law Review First Impressions
Pay-to-stay jails expose the moral tension between the dominant theories of punishment: retributivism and deterrence. A turn to a third major moral theory—virtue ethics—resolves this tension. According to virtue ethics, the moral worth of an action follows from both the character of the action and the disposition of the actor. Virtuous acts promote human flourishing— the central goal of life—when they are the right actions performed for the right reasons. The virtue ethics theory of punishment suggests that pay-to-stay jails conflict with the promotion of human flourishing. A virtuous state’s criminal justice system would not include fee-based incarceration because it …
Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog
Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog
Reviews
The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …
How To Be A Moorean, Donald H. Regan
How To Be A Moorean, Donald H. Regan
Articles
G. E. Moore’s position in the moral philosophy canon is paradoxical. On the one hand, he is widely regarded as the most influential moral philosopher of the twentieth century. On the other hand, his most characteristic doctrines are now more often ridiculed than defended or even discussed seriously. I shall discuss briefly a number of Moorean topics—the nonnaturalness of “good,” the open question argument, the relation of the right and the good, whether fundamental value is intrinsic, and the role of beauty—hoping to explain how a philosophically informed person could actually be a Moorean even today.1
The Value Of Rational Nature, Donald H. Regan
The Value Of Rational Nature, Donald H. Regan
Articles
Kant tells us in the Groundwork of the Metaphysics of Morals that rational nature is an end in itself; that it is the only thing which is unconditionally valuable; and that it is the ultimate condition of all value.1 A striking trend in recent Kant scholarship is to regard these value claims, rather than the formalism of universalizability, as the ultimate foundation of Kant’s theory.2 But does rational nature as Kant conceives it deserve such veneration? Can it really carry the world of value on its shoulders? I think not. As will become clear, I do not doubt the value …
Review Of The Dark Side Of The Left: Illiberal Egalitarianism In America, Donald J. Herzog
Review Of The Dark Side Of The Left: Illiberal Egalitarianism In America, Donald J. Herzog
Reviews
In this elegantly written, provocative, and sometimes just plain provoking book, punctuated by bits of anguish and rather more pique, Richard Ellis worries that the American Left has been so passionate about equality that it has run roughshod over liberty. So put, the thesis is not exactly news. It has been the recurrent lament of conservative indictments- Tocqueville's is the canonical statement, but he has plenty of precursors and followers. And it has its scholarly variations, too, such as Arthur Lipow, Authoritarian Socialism in America: Edward Bellamy and the Nationalist Movement (1982). No profound surprises are on offer here.
Linking The Visions, Donald H. Regan
Linking The Visions, Donald H. Regan
Articles
In my case, which may be unusual, the importance of my non-law training and commitments is not in specific contributions they make to my work in law. Rather, it is in their contributions to my being me.
Review Of Reason And Rhetoric In The Philosophy Of Hobbes, Donald J. Herzog
Review Of Reason And Rhetoric In The Philosophy Of Hobbes, Donald J. Herzog
Reviews
In the 1960s, Quentin Skinner wrote a series of polemical if terse papers arguing that the conventional approach to the history of political theory was confused. Using Hobbes as something of a vehicle for his position, Skinner enunciated what is now well known as the "Cambridge" approach to political theory. He urged that we situate authors in their intellectual contexts so that we can isolate what is distinctive, perhaps subversive, in their use of language: only then, he argued, can we have any valid historical understanding on what they are doing in writing these weird books in the first place. …
Review Of On Voluntary Servitude: False Consciousness And The Theory Of Ideology, Donald J. Herzog
Review Of On Voluntary Servitude: False Consciousness And The Theory Of Ideology, Donald J. Herzog
Reviews
Michael Rosen brings intoxicating erudition and an elegant if elusive prose style to crack—or pulverize—one of the most venerable chestnuts of social theory, the theory of ideology. For Rosen, the two central elements of that theory are (1) that societies are self-maintaining systems and (2) that they produce false consciousness in their members precisely because it helps to maintain society. And for Rosen, the theory is, well, a spectacular mess. Despite the efforts of such analytical Marxists as G. A. Cohen, he urges, no such view can be reconstructed in ways that begin to comport with our ordinary standards for …
Searching For Positivism, Philip Soper
Searching For Positivism, Philip Soper
Michigan Law Review
A Review of W.J. Waluchow, Inclusive Legal Positivism
Review Of The Idea Of A Liberal Theory: A Critique And Reconstruction, Donald J. Herzog
Review Of The Idea Of A Liberal Theory: A Critique And Reconstruction, Donald J. Herzog
Reviews
The flood of literature sometimes derisively referred to as the Rawls/Nozick industry shows no signs of slowing. David Johnston enters the lists to champion an unabashedly cosmopolitan view-humanist liberalism-that focuses on promoting human agency for any and all people in any and all societies. He concedes that he has in place only a rudimentary sketch.
Review Of Political Discourse In Early Modern Britain, Donald J. Herzog
Review Of Political Discourse In Early Modern Britain, Donald J. Herzog
Reviews
This is a festschrift for the indefatigable J. G. A. Pocock (indefatigable indeed: the volume closes with a daunting nine-page bibliography of Pococks work to date, a veritable flood of erudition that shows no signs of ebbing). The essays are better than what usually end up stuck in such volumes: better as a simple matter of scholarly quality, but better too as exemplary models of what is distinctive in Pocock's approach. I suppose that at this price, no one will consider asking impoverished graduate students to purchase the volume. But there are always reserve desks, not to mention xerox machines …
Plato's 'Crito': The Authority Of Law And Philosophy (Symposium On Law, Literature, And The Humanities), James Boyd White
Plato's 'Crito': The Authority Of Law And Philosophy (Symposium On Law, Literature, And The Humanities), James Boyd White
Articles
My talk today will consist primarily of the interpretation of one of the dialogues of Plato, called the Crito. It will not have very much about law in it, and you may well wonder why such a lecture is being given in a law school. Let me begin by saying a word or two in response to that sensible question, as a way of framing the reading that follows.
Review Of Willful Liberalism: Voluntarism And Individuality In Political Theory And Practice, Donald J. Herzog
Review Of Willful Liberalism: Voluntarism And Individuality In Political Theory And Practice, Donald J. Herzog
Reviews
This is an elegant and studied little volume, rather more difficult than it lets on. Flathman wants to argue that liberals are sorely in need of a more robust understanding of the will and individuality than they now possess, that they (or we) should be enthusiastically embracing what might seem to be some tendentious commitments about the partial but inescapable opacity of other selves. He does so by working through a large number of texts and authors-some only contentiously called liberal (Hobbes); others not conceivably liberal (William of Ockham, Augustine, Nietzsche); and still others not obviously interested in anything narrowly …
Breaking The Deadlock: Toward A Socialist-Confucianist Concept Of Human Rights For China, David E. Christensen
Breaking The Deadlock: Toward A Socialist-Confucianist Concept Of Human Rights For China, David E. Christensen
Michigan Journal of International Law
This Note offers an alternative perspective on international human rights that seeks to bypass the dead-end universalist-cultural relativist debate, and proposes a concept of human rights that is harmonious with the modern collectivist and socialist Chinese order. Since human rights protect dignity, this study finds the source of human dignity in China in society, not in nature. This analysis opens the door to the development of a meaningful set of guaranteed individual rights for a socialist state and a Confucian order.
Review Of Transforming Political Discourse, Donald J. Herzog
Review Of Transforming Political Discourse, Donald J. Herzog
Reviews
Political theorists are almost always fond of giving each other home- work assignments but not generally fond of completing them. The opening salvo in a promised three-volume campaign to redefine the tasks of political theory, Transforming Political Discourse might seem to invite more weary shrugs. Surely, we have too many manifestos already. Well, yes -but this one, happily, is modest, sensible, and mercifully brief. Better yet, its brevity is positively austere in sketching the metadescription of what the promised land looks like. The argument actually hangs on a series of show-and-tell exercises, which are supposed to be applications of the …
Philosophy And The Constitution, Donald H. Regan
Philosophy And The Constitution, Donald H. Regan
Book Chapters
The Constitution is one of the great achievements of political philosophy; and it may be the only political achievement of philosophy in our society. The Framers of the Constitution and the leading participants in the debates on ratification shared a culture more thoroughly than did any later American political elite. They shared a knowledge (often distorted, but shared nevertheless) of ancient philosophy and history, of English common law, of recent English political theory, and of the European Enlightenment.They were the American branch of the Enlightenment,and salient among their membership credentials was their belief that reasoned thought about politics could guide …
Duties Of Preservation, Donald H. Regan
Duties Of Preservation, Donald H. Regan
Book Chapters
The central philosophical problem concerning our duties with regard to nature is this: We are strongly inclined to think we have certain duties which are not fully accounted for by instrumental arguments. We are also strongly inclined to hold a view about value that seems to make it impossible to account for these duties by any noninstrumental arguments. Hence our perplexity. It seems that we have duties to respect living creatures; to avoid causing the extinction of species; even to preserve complex parts of the environment s uch as a tropical rain forest or the Grand Canyon. If we ask …
Law's Halo, Donald H. Regan
Law's Halo, Donald H. Regan
Articles
Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation - and I shall clarify what I mean when I say there is no moral obligation to obey the law - as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the law's moral significance. In our thinking about law in a reasonably just society, we have a strong inclination to …
On Preferences And Promises: A Response To Harsanyi, Donald H. Regan
On Preferences And Promises: A Response To Harsanyi, Donald H. Regan
Articles
John C. Harsanyi sketches an entire normative and metaethical theory in under twenty pages. Combining breadth and brevity, his essay is useful and interesting. It reveals the interrelations between Harsanyi's positions on various issues as no longer work or series of articles could do. But by virtue of its programmatic nature, the essay creates a dilemma for a commentator, at least for one who finds many things to disagree with. If I responded to Harsanyi in the same sweeping terms in which he argues, we would end up with little more than opposing assertions. At the other extreme, I could …
Suicide And The Failure Of Modern Moral Theory, Donald H. Regan
Suicide And The Failure Of Modern Moral Theory, Donald H. Regan
Articles
The question I want to address is when and why suicide is morally wrong. There is something peculiar in my writing on this question at all. It will soon become apparent that although I think suicide involves genuine moral issues. I also think that the moral problem of suicide is a problem which most people answer correctly. That is, I think that in the vast majority of cases where people ought not to commit suicide, they do not. They are not even tempted. Conversely, most people who do commit suicide, or who want to, are either justified or at least …
Book Reviews, Edwin C. Goddard, Evans Holbrook, Ralph W. Aigler, Edwin D. Dickinson
Book Reviews, Edwin C. Goddard, Evans Holbrook, Ralph W. Aigler, Edwin D. Dickinson
Michigan Law Review
Books in general, law books in particular, are like people. Most of them are ordinary, some useful, some not, but if they had not appeared they would not have been greatly missed, having appeared they will live their few years and at least seem to be forgotten. A few are so outstanding that they make a strong impress on their time and live on beyond the period of a life. If not great they have great influence and make notable contributions. Among the notable books of our time in the field of property law may be mentioned Jarman on Wills …
German Legal Philosophy, John M. Zane
German Legal Philosophy, John M. Zane
Michigan Law Review
Annexed as an appendix to the translation of Kohler's Philosophy of Law is an appreciation of the work by Adolf Lasson, 1 who complains that he himself once wrote a philosophy of law which has sunk into oblivion, probably for the reason, as he modestly suggests, that he knew so much of systematic philosophy that he had no time to acquire any "special scientific learning either in the law or any other special department of knowledge."2 This complaint is a confession, child-like and amusing in its vanity, which could be dismissed without comment, were it not something that is wholly …
New Law Of Nations, Joseph Kohler
New Law Of Nations, Joseph Kohler
Michigan Law Review
If the article upon the New Law of Nations had been written by an obscure man for a sensational periodical, it would not have been worthy of serious consideration. It appeared in September, 1915, however, in the ZEITSCHRIFT FUR V6LKERRECHT, generally reputed to be the leading periodical devoted to international law, published in the German language. Its author, Dr. JOsEF Ko.HLER, is generally conceded to be the most distinguished living German jurist. His PHILOSOPHY OF LAW was deemed worthy of translation into English and appeared as Volume 12 of the Modern Legal Philosophy Series.' Dean Roscog POUND has referred.to him …
Jurisprudence: A Formal Science, Joseph H. Drake
Jurisprudence: A Formal Science, Joseph H. Drake
Articles
Holland defines jurisprudence as "the formal science of positive law". The meaning of science is plain enough. A good many pages are devoted to the elucidation of the words "positive" and "law," but the term "formal" he explains only by analogy. As there is a formal science of grammar to which belongs, for example, the concept of possession, which has its material manifestation in Latin grammar in a genetive termination and in English grammar in the preposition "of," so there is a formal science of law, material manifestations of whose fundamental principles are found in various systems of actual legal …