Legal Theory Commons^™

The Duty To Obey The Law, David Lefkowitz

Philosophy Faculty Publications

Under what conditions, if any, do those the law addresses have a moral duty or obligation to obey it simply because it is the law? In this essay, I identify five general approaches to carrying out this task, and offer a somewhat detailed discussion of one or two examples of each approach. The approaches studied are: relational-role approaches that appeal to the fact that an agent occupies the role of member in the political community; attempts to ground the duty to obey the law in individual consent or fair play; natural duty approaches; instrumental approaches; and philosophical anarchism, an approach …

On Moral Arguments Against A Legal Right To Unilateral Humanitarian Intervention, David Lefkowitz

Philosophy Faculty Publications

As the international response to recent events in Darfur demonstrates, the restriction of authority to intervene to the United Nations poses the greater legal barrier to intervention. From a practical perspective, then, the more pressing question may be whether international law ought to be modified to permit states, or multi-state organizations, to carry out unilateral humanitarian interventions; that is, interventions that are not authorized by the United Nations. The issue here is essentially a moral one: would the incorporation of a right to unilateral humanitarian intervention entail a moral improvement to international law – for example, a decrease in the …

Natural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi)--they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law--to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources--doing the best they can in …

Virtue Jurisprudence: A Virtue-Centered Theory Of Judging, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

"Virtue jurisprudence" is a normative and explanatory theory of law that utilizes the resources of virtue ethics to answer the central questions of legal theory. The main focus of the essay is the development of a virtue-centered theory of judging. The exposition of the theory begins with exploration of defects in judicial character such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgment. A virtue-centered account of justice is defended against the argument that theories of fairness are prior to theories of justice. The …

Nietzschean Critique And Philosophical Hermeneutics, Francis J. Mootz Iii

Scholarly Works

This article appears as part of a Symposium on "Nietzsche and Legal Theory" published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory.

Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At …

The Place Of Religious Argument In A Free And Democratic Society, Robert Audi

San Diego Law Review

This Article provides an account of the notion of a religious argument, distinguishes several roles of religious arguments in a liberal democracy, and defends a set of principles for their proper use in such a society. The author argues that it is appropriate that citizens apply a kind of separation of church and state in their public use of religious arguments, especially in advocating laws or public policies that restrict liberty. More specifically, the author contends that whatever religious arguments one may have in such cases, one should also be willing to offer, and be to a certain extent motivated …

Religious Morality And Political Choice: Further Thoughts--And Second Thoughts--On Love And Power, Michael J. Perry

San Diego Law Review

This is an Article written by the author of the book Love and Power: The Role of Religion and Morality in American Politics. In this Article, he returns to an inquiry already addressed in Love and Power. He asks the question: should Americans accept an ideal of political choice according to which a citizen ought not make a controversial political choice if the choice cannot be defended without relying on a religious belief that at least some opponents of the choice reject? The author responds with a resounding no, arguing that we should not accept such a political ideal. He …

Constructing An Ideal Of Public Reason, Lawrence B. Solum

San Diego Law Review

In deciding to what ideal citizens should aspire in political debate, some people contend that an ideal of political morality should mirror the freedom of expression. This Article undertakes the construction of an ideal of public reason. It begins with an investigation of the term "public reason." The author considers various possibilities for an ideal or normative standard of public reason. As each option is considered, some possible formulations are discarded and additional specifications are added. He concludes with the ideal that is constructed through this process of elaboration, evaluation, and elimination.

Grounds For Political Judgment: The Status Of Personal Experience And The Autonomy And Generality Of Principles Of Restraint, Kent Greenawalt

San Diego Law Review

This Article addresses three perplexing problems about proposed principles of self-restraint for political decision and advocacy within liberal democracies. It considers the nature of convictions that are based on highly personal experiences and asks what their political status should be. It explores the subtle relationship between proposed principles of restraint and overarching religious and other comprehensive views. It argues that a plausible principle of restraint must appeal to people with various religious and other comprehensive views and must be suited to the particular conditions of a given society.

Liberalism, Religion And The Unity Of Epistemology, Larry Alexander

San Diego Law Review

This Article focuses on the relation between liberalism and religion. Professor Alexander argues that liberalism is itself just a sectarian view on the same level as the religious and other views that it purports to be neutral about and to tolerate. The Article shows that liberalism is a rejection of all illiberal religious tenets. It further contends that liberalism cannot make out its case for excluding religious arguments from shaping public policy. It concludes that to the extent liberalism is defined by or rests on the insulation of public policy from religious views, liberalism is undermined by its failure to …

Play Fair With Punishment, Richard Dagger

Political Science Faculty Publications

If we want to provide a justification for legal punishment, then, we must answer two distinct questions: (1) What justifies punishment as a social practice? and (2) What justifies punishing particular persons? The principle of fair play is an especially attractive theory of punishment, I shall agree, because it offers plausible and compelling answers to both these questions. I shall also suggest that there is a third question - How should we punish those who commit crimes? - that fair play cannot answer without help from other sources.

The Ontological Basis Of Legal Hermeneutics: A Proposed Model Of Inquiry Based On The Work Of Gadamer, Habermas And Ricoeur, Francis J. Mootz Iii

Scholarly Works

This paper provides a detailed account of Gadamer's philosophical hermeneutics and its relationship to contemporary problems in legal theory. I first demonstrate that Gadamer's approach charts a course between the inflated claims of critical legal studies and the subjectivism of the law and literature movement. I then interrogate the hermeneutical approach from the perspective of Habermas's critical theory. I conclude that Ricoeur's intervention in the Gadamer-Habermas debate helps significantly to draw out the critical elements of Gadamer's work. I conclude by developing new model of legal practice and theory grounded in the textuality of law.

Address By Secretary Of Labor W. Willard Wirtz, W. Willard Wirtz

San Diego Law Review

The address was delivered by Mr. Wirtz at the annual meeting of the Association of American Law Schools held in Los Angeles on December 29, 1963. Because they were addressed to the particular group assembled and depended for their meaning upon circumstances existing at the time, certain introductory comments have been deleted.