Law and Philosophy Commons^™

The Universal And The Particular In Legal Discourses, George P. Fletcher

Faculty Scholarship

My target in this article is a set of views that I shall call the functionalist perspective of comparative law. Of course, the word "functionalist" stands for a number of different theories. In order to be precise about the view that I oppose, I shall set my sights on the arguments developed in Otto Kahn-Freund's inaugural lecture Comparative Law as an Academic Subject, published two decades ago.

Paradoxes In Legal Thought, George P. Fletcher

Faculty Scholarship

Traditional legal thought has generated few anomalies, antinomies, and paradoxes. These factual and logical tensions arise only when theorists press for a complete and comprehensive body of thought. Discrete, unconnected solutions to problems and particularized precedents spare us the logical tensions that have troubled scientific inquiry.

Anomalies arise from data that do not fit the prevailing scientific theory. Paradoxes and antinomies, on the other hand, reflect problems of logical rather than factual consistency. To follow Quine's definitions, paradoxes are contradictions that result from overlooking an accepted canon of consistent thought. They are resolved by pointing to the fallacy that generates …

When Incommensurable Values Conflict -- Thoughts On Mandelker's Environment And Equity: A Regulatory Challenge, Bailey Kuklin

Faculty Scholarship

No abstract provided.

How Empty Is The Idea Of Equality, Kent Greenawalt

Faculty Scholarship

The nature of equality and the relationship between equality and justice have long been puzzling to social and legal philosophers. One manifestation of these problems of understanding is uncertainty among lawyers and judges about the significance of legal norms formulated in the language of equality, most notably the equal protection clause of the Constitution. In an elaborately reasoned, imaginative, and richly referenced recent article, Peter Westen has urged the arresting conclusion that the idea of equality is empty, empty in the sense that any normative conclusion derived from the idea could be reached more directly by reliance on normative judgments …

Promises In Morality And Law, Joseph Raz

Faculty Scholarship

J.L. Austin thought that philosophers have much to learn from lawyers and the law. No doubt philosophers and lawyers have a lot to learn from each other wherever their interests intersect. But until now philosophical analysis has done more to elucidate important legal concepts and distinctions than viceversa. P.S. Atiyah's Promises, Morals, and Law may redress this imbalance. In this book, one of today's most accomplished students of the common law examines the nature of promises and the grounds of their binding force. Written in Atiyah's characteristically vigorous and lucid style, the book is a philosophical treatise, but one that …

Reason And Law, George C. Christie

Faculty Scholarship

No abstract provided.

Utility And Rights, David B. Lyons

Faculty Scholarship

Two notions concerning the relation of rights to utilitarianism seem widely accepted, by both utilitarians and their critics. The first is that utilitarianism is hostile to the idea of moral rights. The second is that utilitarianism is capable of providing a normative theory about legal and other institutional rights. This chapter chiefly concerns the second thesis, and argues against it. But it also says something about the first. In previous writings I have challenged the first thesis, but here I shall suggest that it is sound. The upshot is that utilitarianism has a great deal of trouble accommodating rights.

Balzacian Legality: A Proposal For Natural Law Juridicial Standards Of Legality, Thomas E. Carbonneau

Faculty Scholarship

The task of the present article is twofold. First, it represents an attempt to make an original English language contribution to the continuing interdisciplinary inquiry, begun in France, into the presence of law in Balzac's The Human Comedy, by focusing upon themes and novels that have not been the subject of previous individual study. Second, it seeks to contribute to an area of growing interest to legal scholars in the United States – the study of law and literature – by providing an example of the insights one French novelist with legal training and experience had into questions that …

Authority And Consent, Joseph Raz

Faculty Scholarship

My starting point is the assumption that there is no general obligation to obey the law, not even a prima facie obligation and not even in a just society. This assumption is perhaps becoming more popular. In recent years it has been defended by several writers. There is more that needs to be said in its support, but I will not attempt to do so here. Instead, I will reflect on a problem posed by accepting it, a problem concerning the relations between an individual citizen and the state. It is common to think that the state has authority over …

Conflicts Of Law And Morality – Institutions Of Amelioration, Kent Greenawalt

Faculty Scholarship

In his rich, intricate, and wise examination of themes from the Crito, A. D. Woozley explores Socrates' proposal, put in the mouth of the personified laws of Athens, that the duty of a citizen is to obey a law or to persuade society that the law is wrong. If this position is understood to permit disobedience and attempted persuasion after a law is adopted, one of its implications is that on some occasions when people intentionally break the law, those who administer the law may properly decline to impose the stipulated punishment, because they believe that disobedience was justified. Suggesting …

The Implicit Teaching Of Utopian Speculations: Rousseau's Contribution To The Natural Law Tradition, Thomas E. Carbonneau

Faculty Scholarship

This article examines the evolution of natural law theory and Jean-Jacques Rousseau's contribution to it. The thesis that emerges from that examination asserts that the tension between law in its natural and positive forms is endemic to the human condition. If any common ground is to be found between theories of positivistic and natural law, it lies in the realization that natural law doctrine is not gratuitous and subjective optimism nor idealism pure and simple. The fact that natural law doctrine can serve but a role of general guidance, that it is alien to the concrete, positivistic manifestations of law, …

Balzacian Legality, Thomas E. Carbonneau

Faculty Scholarship

The study of law and literature is an area of growing interest to legal scholars in the United States. Honore de Balzac incorporated in his works a panoramic view of the social reality of nineteenth century France. In this context, the fidelity of Balzac's plots and characters to their external models has been well-documented in a number of fields, including sociology, commerce, and finance. In addition to this penchant for realism, however, Balzac laced his novels with an equally evident moral content. This commitment to accuracy and morality also influenced Balzac's novelistic treatment of the law and lawyers.

Balzac's work …

Principles, Positivism, And Legal Theory, David B. Lyons

Faculty Scholarship

A complete theory of law, writes Ronald Dworkin, tells us what law is and what it ought to be. The current "ruling" theory of law combines legal positivism with utilitarianism: it holds, first, that law is a set of explicitly adopted rules and, second, that law ought to maximize the general welfare. Dworkin rejects both branches of that theory. He argues that law contains "principles" as well as rules and that these principles cannot be traced to any explicit adoption or enactment. Dworkin argues further that the ruling theory neglects moral rights, which must be respected, he claims, even if …

The Individualization Of Excusing Conditions, George P. Fletcher

Faculty Scholarship

The excusing conditions of the criminal law are variations of the theme "I couldn't help myself' or "I didn't mean to do it." In this respect the defenses known as necessity, duress, insanity and mistake of law are but extensions of homely, routine apologies for causing harm and violating the rules of social and family life. While we use the plea "I couldn't help myself" to cover the full range of excusing circumstances, each of the formal excuses of the criminal law has a limited sphere. As a general matter, these spheres are dictated by the type of circumstances rendering …

Fairness And Utility In Tort Theory, George P. Fletcher

Faculty Scholarship

Professor Fletcher challenges the traditional account of the development of tort doctrine as a shift from an unmoral standard of strict liability for directly causing harm to a moral standard based on fault. He then sets out two paradigms of liability to serve as constructs for understanding competing ideological viewpoints about the proper role of tort sanctions. He asserts that the paradigm of reciprocity, which looks only to the degree of risk imposed by the parties to a lawsuit on each other, and to the existence of possible excusing conditions, provides greater protection of individual interests than the paradigm of …

Legal Principles And The Limits Of Law, Joseph Raz

Faculty Scholarship

Most people tend unreflectively to assume that laws belong to legal systems. "Most educated people," writes H. L. A. Hart, "have the idea that the laws in England form some sort of system, and that in France or the United States or Soviet Russia and, indeed, in almost every part of the world which is thought of as a separate 'country' there are legal systems which are broadly similar in structure in spite of important differences." This includes for most people the assumption that laws differ from non-legal rules and principles. There are, for example, moral rules and principles, social …

The Identity Of Legal Systems, Joseph Raz

Faculty Scholarship

Laws are part of legal systems; a particular law is a law only if it is part of American law or French law or some other legal system. Legal philosophers have persistently attempted to explain why we think of laws as forming legal systems, to evaluate the merits of this way of thinking about the law and to make it more precise by explicating the features that account for the unity of legal systems. Various theories have been suggested but none has been accepted as completely satisfactory, and the continuing debate owes much to the intricacy of the problems involved. …

A Contextual Approach To Disobedience, Kent Greenawalt

Faculty Scholarship

Edmund Burke once noted that the rebelliousness of colonial America was largely a consequence of the size and prominence of the legal profession, under whose influence the people "snuff the approach of tyranny in every tainted breeze." Today, however, most members of the legal profession take a much dimmer view of civil disobedience, although some do acknowledge its justification in special circumstances. Few who write on the subject recognize that in making judgments about the morality of disobedient acts the lawyer's perspective is limited.

Disputes over whether an illegal action is morally justified in a particular instance can be conceptually …

On Lawful Governments, Joseph Raz

Faculty Scholarship

What is the meaning of sentences of the form 'X is the lawful government of the country Y,' and what kinds of statements are normally -made by using them? Most answers to these questions can be classified as legalistic, moralistic, or compromise solutions. The gist of the legalistic approach is that the lawful government is that authorized by the positive law of the land. Critics of the legalistic approach point out that disagreement about the lawful government is not always solved when agreement is reached about the positive law of the land. For example, two people may disagree as to …