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Articles 1 - 30 of 39
Full-Text Articles in Law and Philosophy
Revisiting Marcuse On Repressive Tolerance: A Twenty-First Century Retrospective, David Ingram
Revisiting Marcuse On Repressive Tolerance: A Twenty-First Century Retrospective, David Ingram
Philosophy: Faculty Publications and Other Works
Herbert Marcuse’s essay Repressive Tolerance (RP) has been praised by the Left and vilified by the Right for its alleged promotion of censorship targeting reactionary opinions and actions. I argue that this interpretation of the text is mistaken. According to my alternative reading of the text, RP should be understood as an exercise in provocation and irony aimed at defending civil disobedience and dissent. Marcuse’s defense of dissent, however, appeals to a critique of pure tolerance that exposes the unavoidably partisan practice of tolerance, which invariably favors the reigning undemocratic status quo. The choice whether to tolerate in a manner …
Military Officers As Neo-Classical Professionals: Guardians Of The Republic, Not Merely Servants Of The Regime, Rob Atkinson
Military Officers As Neo-Classical Professionals: Guardians Of The Republic, Not Merely Servants Of The Regime, Rob Atkinson
Scholarly Publications
This paper is the first step in developing a neo-classical theory of the military officer corps as a functionalist profession. It unpacks the central paradox of Samuel P. Huntington's The Soldier and the State: Why does an account that begins with a call for a highly professionalized officer corps to obey the orders of any legally legitimate civilian regime end with the promise that humanity can achieve both security and redemption if all the nations of the world adopt core military values? How can "militarize the military," Huntington's solution to the classical question of civilian/military relations-Plato's "Who guards the guardians? …
Metaphysics & Morals In Canadian Criminal Justice: A Pragmatic Analysis Of The Conflict Between Neuroscience And Retributive Folk Psychology, Sarah Greenwood
Metaphysics & Morals In Canadian Criminal Justice: A Pragmatic Analysis Of The Conflict Between Neuroscience And Retributive Folk Psychology, Sarah Greenwood
LLM Theses
The retributive justification of Canadian criminal law contains several assumptions about human nature that conflicts with what neuroscience has established regarding human behavior and the function of rationality. Interdisciplinary discourse on this conflict between law and neuroscience has unnecessarily implicated the free will debate and is further stagnated by epistemic cultural differences between the two disciplines. To avoid these roadblocks, this thesis applies the methodological principles of pragmatic philosophy. Rather than asking which description of human nature is true, pragmatic inquiry focuses on the difference either would make in practice. This analysis reveals that retributive folk psychology in practice causes …
Liberalism And The Commons, Hanoch Dagan
Liberalism And The Commons, Hanoch Dagan
Cornell Journal of Law and Public Policy
It is a real privilege for me to participate in the celebration of Greg Alexander's enormous contribution to the scholarship and jurisprudence on property, which has enhanced our understanding of property in numerous ways. Alexander utilized almost every tool in a legal theorist's kit-notably: history, comparative law, and philosophical investigation-to study property and developed an innovative and nuanced theory of property. Property, for Alexander, has a core role in fostering human flourishing. A proper conception of property, he claims, must acknowledge that obligations and not just rights, and communities and not only individuals, take center stage.
The Unreasonableness Of Catholic Integralism, Micah Schwartzman, Jocelyn Wilson
The Unreasonableness Of Catholic Integralism, Micah Schwartzman, Jocelyn Wilson
San Diego Law Review
In this symposium contribution, we argue that Catholic integralism is unreasonable. Our conception of reasonableness is defined in terms of substantive moral and epistemic commitments to respecting the freedom and equality of citizens who hold a wide—but not unlimited—range of religious, ethical, and philosophical conceptions of the good. In arguing that Catholic integralism conflicts with this understanding of reasonableness, it might seem that we are begging the question against integralists. But our purpose here is not to engage integralists on their own terms. So far, the debate about integralism has been conducted mostly among Catholics and Christian conservatives. Our critique …
Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel
Philosophical Legal Ethics: An Affectionate History, David Luban, W. Bradley Wendel
Georgetown Law Faculty Publications and Other Works
The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, …
Conceptions Of Religion In The Secular State: Evolving Turkish Secularism, Seval Yildirim
Conceptions Of Religion In The Secular State: Evolving Turkish Secularism, Seval Yildirim
Pepperdine Law Review
The article focuses on the concepts of religion in secular states such as Republic of Turkey. Topics discussed include distinction between secularism and religion, views of philosopher of liberalism John Locke on delegation of matters of faith to the Church and matters of public good to the state along with the relationship of modernization and secularism.
Is(N'T) Catharine Mackinnon A Liberal?, Don Herzog
Is(N'T) Catharine Mackinnon A Liberal?, Don Herzog
Articles
Catharine MacKinnon likes to describe her view as radical feminism or feminism unmodified or feminism, full stop. And she likes to contrast it to liberal feminism, which she sometimes treats with caustic scorn. But is she right to see a contrast here?
Stanley Hauerwas And The Law: Is There Anything To Say - Theological Argument In Law: Engaging With Stanley Hauerwas: Foreword, John D. Inazu
Stanley Hauerwas And The Law: Is There Anything To Say - Theological Argument In Law: Engaging With Stanley Hauerwas: Foreword, John D. Inazu
Scholarship@WashULaw
This essay is the special editor's introduction to a forthcoming symposium in Law & Contemporary Problems that explores the work of theologian Stanley Hauerwas and its implications for law and legal scholarship. Although not well-known in the legal academy, Hauerwas is an important scholar and public intellectual who has written scores of books and hundreds of articles, been named "America's Best Theologian" by Time Magazine, and delivered the prestigious Gifford Lectures. He has arguably “articulated the most coherent and influential political theology in and for the North American context” and has been “at the forefront of major transformations in theology” …
Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming
Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends …
Taking Safety Seriously: Using Liberalism To Fight Pornography, John M. Kang
Taking Safety Seriously: Using Liberalism To Fight Pornography, John M. Kang
Michigan Journal of Gender & Law
Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, the author proposes to illuminate what appears to be the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, the author argues that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.
The Possibility Of A Secular First Amendment, Chad Flanders
The Possibility Of A Secular First Amendment, Chad Flanders
All Faculty Scholarship
In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is …
Liberalism And Ability Taxation, David Hasen
Liberalism And Ability Taxation, David Hasen
Publications
Recent tax scholarship has embraced the idea of individual endowment taxation, or taxation of human abilities, as an approach to ideal tax theory. Under endowment taxation, individuals are taxed according to their native abilities to command resources, rather than according to any actual index of goods or expenditures, such as income, consumption, or wealth, that otherwise might be thought relevant to the assignment of tax burdens. This Article argues that endowment taxation is incompatible with political theories that might broadly be described as "liberal," to the extent such theories support redistribution. It also argues that limited forms of endowment taxation …
Book Review, Mark C. Modak-Truran
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 …
Public Reason As A Public Good, Aaron-Andrew P. Bruhl
Public Reason As A Public Good, Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
The Force Of Ancient Manners: Federalist Politics And The Unitarian Controversy, Marc Arkin
The Force Of Ancient Manners: Federalist Politics And The Unitarian Controversy, Marc Arkin
Faculty Scholarship
No abstract provided.
Governmental Illegitimacy And Neocolonialism: Response To Review By James Thuo Gathii, Brad R. Roth
Governmental Illegitimacy And Neocolonialism: Response To Review By James Thuo Gathii, Brad R. Roth
Michigan Law Review
The essence of James Thuo Gathii's criticism of Governmental Illegitimacy in International Law is that my study seeks to answer a doctrinal question rather than to challenge the "Eurocentric" assumptions that pervade doctrinal thinking. Although I (inevitably) take exception to some of Professor Gathii's characterizations of the book's details, an elaborate clarification and defense of these finer points would amount to an uninteresting response to an interesting essay. Indeed, since Gathii characterizes the book as "well written, well-argued, and well-researched," and since I am in sympathy with the considerations that prompt him to go beyond the scope of what I …
Rejoinder: Twailing International Law, James Thuo Gathii
Rejoinder: Twailing International Law, James Thuo Gathii
Michigan Law Review
Brad Roth's response to my Review of his book seeks to privilege his approach to international law as the most defensible. His response does not engage one of the central claims of my Review - that present within international legal scholarship and praxis is a simultaneous and dialectical coexistence of the dominant conservative/liberal approach with alternative or Third World approaches to thinking and writing international law. Roth calls these alternative approaches critical and does not consider them insightful for purposes of dealing with issues such as anticolonialism. Roth's characterization of my Review as falling within critical approaches to international law …
Neoliberalism, Colonialism, And International Governance: Decentering The International Law Of Government Legitimacy, James Thuo Gathii
Neoliberalism, Colonialism, And International Governance: Decentering The International Law Of Government Legitimacy, James Thuo Gathii
Michigan Law Review
Brad R. Roth's Governmental Illegitimacy in International Law is a neoconservative realist response to liberal internationalists (or universalists). As a critique, the book unsurprisingly legitimizes the subject of its attack: liberal internationalism. That is so since in their opposition to each other, liberal internationalists and neoconservative realists fall within the same discursive formation - a Euro-American hegemony of thinking, writing, critiquing, engaging, producing, and practicing international law. This Review is an antihegemonic critique. It seeks to decenter this Euro-American opposition between liberal internationalism and neoconservative realism that has characterized the study of international law, especially in the post-Cold War period. …
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.
Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild
Subversive Thoughts On Freedom And The Common Good, Larry Alexander, Maimon Schwarzschild
Michigan Law Review
Richard Epstein is a rare and forceful voice against the conventional academic wisdom of our time. Legal scholarship of the past few decades overwhelmingly supports more government regulation and more power for the courts, partly in order to control businesses for environmental and other reasons, but more broadly in hopes of achieving egalitarian outcomes along the famous lines of race, gender, and class. Epstein is deeply skeptical that any of this is the shining path to a better world. Epstein's moral criterion for evaluating social policy is to look at how fully it allows individual human beings to satisfy their …
The Empty Circles Of Liberal Justification, Pierre Schlag
The Empty Circles Of Liberal Justification, Pierre Schlag
Michigan Law Review
American liberal thinkers are fascinated with the justification of the liberal state. It is this question of justification that inspires and organizes the work of such leading liberal thinkers as John Rawls, Ronald Dworkin, Frank Michelman, and Bruce Ackerman. The manifest import and prevalence of the question of justification among liberal thinkers makes it possible to speak here of a certain "practice of liberal justification." This practice displays a certain order and certain recursive characteristics. It is composed of a common ontology and a common narrative. It poses for itself a series of recursive intellectual problems answered with a stock …
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.
Liberalism And The Possibility Of Multicultural Constitutionalism: The Distinction Between Deliberative And Dedicated Cultures, Robert Justin Lipkin
Liberalism And The Possibility Of Multicultural Constitutionalism: The Distinction Between Deliberative And Dedicated Cultures, Robert Justin Lipkin
University of Richmond Law Review
Liberalism and multicultural constitutionalism are on a collision course destined to become the next great battlefield in the unfolding odyssey of American constitutional law. The impending battle will define the scope and limits of liberal constitutionalism and its role as the model for democracy around the world. While turbulence between liberalism and multicultural constitutionalism occurs across a panoply of controversies, the eye of the storm focuses on one central question: Can liberalism tolerate non-liberal cultures? This article explores the hypothesis that liberalism's deep structure precludes it from explaining and justifying the toleration of non-liberal cultures. If so, this hypothesis has …
The Anatomy Of Antiliberalism, Jeffrey R. Costello
The Anatomy Of Antiliberalism, Jeffrey R. Costello
Michigan Law Review
A Review of The Anatomy of Antiliberalism by Stephen Holmes
A More Democratic Liberalism, Joshua Cohen
A More Democratic Liberalism, Joshua Cohen
Michigan Law Review
A Review of Political Liberalism
Secular Fundamentalism, Paul F. Campos
Gendered States: Feminist (Re)Visions Of International Relations Theory, Hilary Charlesworth
Gendered States: Feminist (Re)Visions Of International Relations Theory, Hilary Charlesworth
Michigan Journal of International Law
Review of the book edited by V. Spike Peterson.
The Ennobling Of Democracy: The Challenge Of The Postmodern Age, Fernando R. Tesón
The Ennobling Of Democracy: The Challenge Of The Postmodern Age, Fernando R. Tesón
Michigan Journal of International Law
Review of the book by Thomas L. Pangle.
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 …