Law and Philosophy Commons^™

Reevaluating Legal Theory, Jeffrey A. Pojanowski

Journal Articles

Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …

Picking At Morals: Analytical Jurisprudence In The Age Of Naturalized Ethics, Alina Ng Boyte

Journal Articles

No abstract provided.

Truth And Politics: A Symposium On Peter Simpson's Political Illiberalism: A Defense Of Freedom., Gerard V. Bradley

Journal Articles

There is no more important question in thinking about life-and actually living-in political community than whether it is to be permeated by, and purposefully oriented around, the main truths about human flourishing. It is at least paradoxical that, precisely when the state and its law and political life are shaping people's lives more and more, the professed roots of all this influence are growing thinner, more shallow. Lawmakers who profess and in many cases even think they should be "neutral" about values are more involved with how persons' lives go than, perhaps, ever before.

Of course, any community which has …

Freedom, Benefit And Understanding: Reflections On Laurence Claus's Critique Of Authority, John M. Finnis

Journal Articles

Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding (New York: Oxford University Press, 2012), this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority of rule makers is never peremptory in a binary (all or nothing) as …

The Conceits Of Our Legal Imagination: Legal Fictions And The Concept Of Deemed Authorship, Alina Ng Boyte

Journal Articles

Legal fictions contain embedded nuggets of information about social reality and reveal important aspects of human society. However, the use of legal fictions may also obscure important information or fundamental questions about law and its role in shaping society. These fictions become institutionalized without a clear understanding of their function. When that happens, fallacious assumptions about human behavior and social relationships transform into binding principles that set the course for future legal development, potentially resulting in legal rules that are completely dissociated from social, historical, or cultural reality. This article explores the concept of deemed authorship as a legal fiction …

What Is The Philosophy Of Law?, John M. Finnis

Journal Articles

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems …

Roe V. Wade At 40, Gerard V. Bradley

Journal Articles

Under the leadership of Chief Justice Warren Burger, who joined it in 1969, the Supreme Court departed from the course taken during the 16-year tenure of his predecessor, Earl Warren. The Burger Court rolled back precedents in criminal procedure and obscenity, while stopping the drive to universalize welfare rights and equalize public schooling expenditures. Roe v. Wade (1973), on the other hand, extended the Warren Court's deepest commitments: sexual liberation, obviously; equality, with respect to both race and class; and even church-state separation, insofar as the Roe Justices identified opposition to abortion with Catholic dogma. These more or less "progressive" …

Feminist Legal Realism, Mae C. Quinn

Journal Articles

This Article begins to rethink current conceptions of two of the most significant legal movements in this country1—Legal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books,2 law review articles,3 and blog posts4 to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects— Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists— and there are …

We Hold These Truths And The Problem Of Public Morality, Gerard V. Bradley

Journal Articles

This essay maintains that although We Hold These Truths represented an important milestone in Catholic reflection on the American regime, Murray's analysis of public morality and the state's role in its promotion and enforcement is notably weak and of little assistance to us today. More specifically, it argues that Murray’s analysis is insufficiently philosophical and too concerned with the pragmatic task of forging an approach widely acceptable in the America of his day; that it rests on an artificial distinction between “private” and “public” morality that fails to sufficiently appreciate the essential dependence of sound morals legislation upon the government’s …

A Process Theory Of Natural Law And The Rule Of Law In China, Mark C. Modak-Truran

Journal Articles

This Article analyzes China's efforts to implement the rule of law and proposes a constructive, post-modern normative theory of law based on the Process Philosophy of Alfred North Whitehead and the Radical Empiricism of William James. This "process theory of natural law" provides a novel theory of natural law that eliminates the perceived illegitimacy arising from legal indeterminacy and closes the ontological gap between legal theory and practice. Process natural law also mediates many of the cultural differences between the East and the West through the telos of beauty (unity-in-diversity), which entails maximizing both an Eastern aesthetic sense of order …

Individuals First, Richard W. Garnett

Journal Articles

Richard Garnett reviews Modern Liberty and the Limits of Government by Charles Fried, W.W. Norton, 224 pp. (2006)

Secularization, Legal Indeterminacy, And Habermas's Discourse Theory Of Law, Mark C. Modak-Truran

Journal Articles

This Article focuses on Habermas’s sophisticated awareness of the tension between secularization of law and legal indeterminacy and treats his discourse theory of law as a significant test of the feasibility of reconciling these claims. In an earlier article, I criticized Habermas’s discourse of justification and his claim that it legitimated the law independently of a religious or metaphysical worldview. Even assuming I was misguided in that critique, this Article argues that Habermas’s discourse of application is incoherent and fails to maintain the secularization of the law in the face of legal indeterminacy. Given Habermas’s failure, contemporary legal theory needs …

Shopping For Law In A Coasean Market, G. Marcus Cole

Journal Articles

In the twentieth century, two Nobel-Prize winning economists wrote two seemingly unrelated characterizations of the processes constraining human behavior. One, Ronald Coase, wrote a short article entitled The Nature of the Firm,1 in which he reduced all managerial decision-making to a fundamental choice between making the factors of production, or buying them. This article and the idea of the "make or buy" decision for which it has come to be known, have proven to be among the most seminal in the history of financial economics and organizational behavior.

The second economist, Friedrich Hayek, wrote what he thought to be a …

Book Review, Mark C. Modak-Truran

Journal Articles

While Bauman provides persuasive rebuttals to many of the CLS criticisms of liberalism, contemporary liberalism suffers from some of the same shortcomings Bauman observes about CLS. For example, Bauman criticizes CLS for not having a conceptual foundation (an external standard of truth) to demystify the liberal legal consciousness claimed to be inherent in the law. Bauman also argues that contemporary liberal theorists, like John Rawls, avoid the “comprehensive metaphysical or ontological framework” (p.30), held to be incoherent by CLS. However, Bauman fails to realize that Rawls similarly lacks a conceptual foundation to justify his “political not metaphysical” form of political …

A Pragmatic Justification Of The Judicial Hunch, Mark C. Modak-Truran

Journal Articles

Judges currently face a daunting task. On the one hand, they are increasingly aware of the indeterminacy of the law, while on the other hand, they face an explosion of fact. Judges are floating on shaky legal timbers in a sea of documents, deposition transcripts, affidavits, oral courtroom testimony, and expert opinions. The explosion of fact alone presents monumental problems for deciding cases without unduly simplifying or reducing this factual complexity. For example, both federal and state judges are implementing case management systems to deal with their crushing case loads and the increasing complexity of their cases. In addition, there …

Corrective Justice And The Revival Of Judicial Virtue, Mark C. Modak-Truran

Journal Articles

Judges must be wise. Sound judicial reasoning requires moral virtue. These sentiments about judging have been lost. They apparently belong to a bygone era. While many advocate self-restraint or prudence as judicial virtues, moral virtue has been conspicuously absent from the list. Except for avoiding obvious vices such as bribery, favoritism, prejudice, sloth, and arbitrariness, conventional wisdom maintains that being a good judge does not require being a good person. Even theorists sympathetic to a relationship between law and morality balk at making moral virtue a prerequisite of judicial decision making. Rather, many contend that judicial decision making is a …

Habermas’S Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran

Journal Articles

The relationship between law and religion has become the subject of a sustained and robust debate. However, unlike earlier theological attempts to ground law in religion or the Divine, participants in the modem debate rarely, if ever, argue for a theological or religious legitimation of law. Either implicitly or explicitly, there appears to be a modem consensus among legal scholars and philosophers that the world has been disenchanted. The world can no longer be viewed as an integrated, meaningful whole under a comprehensive religious or metaphysical worldview, and law can no longer be legitimized by its religious or metaphysical foundations. …

Natural Law Theory: Contemporary Essays, Gerard V. Bradley

Journal Articles

Natural Law Theory: Contemporary Essays. Edited by Robert P. George. Oxford University Press. 371 pages. $39.95.

This book's editor, Princeton legal philosopher Robert George, has assembled essays by leading natural law thinkers and their most formidable commentators and critics. The essays, according to George, "convey an idea of the diversity of contemporary natural law theories...'liberal' and 'conservative'.... Some theories fit comfortably into the tradition of Aristotle and Aquinas, others are related to that tradition remotely, if at all."

Moral Absolutes: Tradition, Revision And Truth, Gerard V. Bradley

Journal Articles

Moral Absolutes: Tradition, Revision and Truth. By John Finnis.
Catholic University of America Press. 113 pages. $9.95.

Receipts for what the producers had the decency to call Indecent Proposal approach $100 million. The couple's earnest deliberations evidently engage. The moviegoer, I suppose, wonders with Demi and Woody: Are there some things that, no matter what, it is never right to do? Are there, in other words, absolute moral prohibitions? Is adultery one of them?

In this formidable volume, Oxford philosopher John Finnis cogently defends the common answer (for millennia, until just a few decades ago) of Jews and Christians: There …

Constitutional Theory Beyond Left And Right, Gerard V. Bradley

Journal Articles

Hadley Arkes: Beyond the Constitution. (Princeton: Princeton University Press, 1990. Pp. 288. $24.95.)

Hadley Arkes's latest book is Beyond the Constitution and it is virtually a tour de force. Author of The Philosopher in The City and First Things, in the new work Arkes persuasively criticizes both liberal and conservative constitutionalism as well as their common legal theoretical base, displaying all the while the philosophical astuteness and elegant prose his prior work has accustomed readers to expect. Anyone remotely interested in constitutional law should read this book.

Probing Bork's Judicial Philosophy, Gerard V. Bradley

Journal Articles

Robert Bork: The Tempting of America. (New York: The Free Press, 1989. Pp. xiv, 432. $22.50.)

In the last third of The Tempting of America Robert Bork relives the painful ordeal of his lost nomination to the Supreme Court. Any sentient American then alive already knows that story: the campaign against him was full of half-truths, distortions, and just plain lies. Bork adds some confirming anecdotes, and I congratulate him for telling the tale candidly but without rancor. The loss is ours. In my opinion, Bork would have been among the two or three greatest justices of the last …

Review Essay: Liberalism And The Supreme Court, Donald P. Kommers

Journal Articles

In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court's constitutional jurisprudence. It argues that the tradition's political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of "rational liberty," both as a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: …