Law and Philosophy Commons^™

Postmodern Free Expression: A Philosophical Rationale For The Digital Age, Stephen M. Feldman

Marquette Law Review

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. IN particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the …

Afterword - Agape And Reframing, James Boyd White

Other Publications

In a provocative essay, philosopher Jeffrie Murphy asks: 'what would law be like if we organized it around the value of Christian love, and if we thought about and criticized law in terms of that value?'. This book brings together leading scholars from a variety of disciplines to address that question. Scholars have given surprisingly little attention to assessing how the central Christian ethical category of love - agape - might impact the way we understand law. This book aims to fill that gap by investigating the relationship between agape and law in Scripture, theology, and jurisprudence, as well as …

Why The State?, Joseph Raz

Faculty Scholarship

I offer two questions for the price of one: Why do so many jurisprudential theories focus on the state? And what is it about the State that gives it a special place in our social arrangements? I do not mean these to address all aspects of states. They are questions about the law or legal systems of states.

We have to be open to a negative answer to the second question, thus being critical of jurisprudential theories that focus more or less exclusively on the state. That need not deny that states have their own legal systems. It could merely …

Intention And Motivation, Joseph Raz

Faculty Scholarship

What is the role of intentions in the actions intended? What do they contribute, and how do they contribute to the occurrence of the intended actions?

The paper will offer an account of acting with an intention and of having an intention to act. It will not offer an account of intentional action, merely suggesting that when intentional actions are not actions done with an intention, their explanation as intentional relates to that of actions with intentions, showing how like them and unlike them they are. Motivation will be discussed mainly to distinguish its role in leading to action from …

Can Moral Principles Change?, Joseph Raz

Faculty Scholarship

The paper considers the main arguments against the possibility that basic normative principles can change, and finds them wanting. The principal argument discussed derives from the claim that normative considerations are intelligible, and therefore that they can be explained, and their explanations presuppose the prior existence of basic normative principles. The intelligibility thesis is affirmed but the implication that basic change is impossible is denied. Subsumptive explanations are contrasted with explanations by analogy. Later in the paper, other objections are considered more briefly: that normative properties are queer, that they are unconnected to the rest of reality, and therefore cannot …

On The Moral Significance Of Sacrifice, Joseph Raz

Faculty Scholarship

The paper offers a few reflections on moral implications of making sacrifices and of possible duties to make sacrifices. It does not provide an exhaustive or a systematic account of the subject. There are too many disparate questions, and too many distant perspectives from which to examine them to allow for a systematic let alone an exhaustive account, and too many factual issues that I am not aware of. Needless to say, the observations that follow are in part stimulated by the popularity of some views that are mistaken. I will not however examine any specific view or account of …

Freedman On Machiavelli, Philip C. Bobbitt

Faculty Scholarship

This chapter links Freedman’s work to that of Niccolò Machiavelli through constructivist realism, which is an apposite term for the two thinkers, as the unchanging sense of human nature interacts with ever changing context, and humans have to adapt to new circumstances, but with the limitations imposed on them both by themselves or situations. Despite their biographical parallels, it is the similarities and complementarities in their thinking that are more profound reasons to associate them. Both wrestle with the challenge of understanding the ways and the extent to which it is possible to anticipate and to shape the future to …

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

Journal Articles

No abstract provided.

Situational Ethics And Veganism, Neil H. Buchanan

UF Law Faculty Publications

The debate about vegan ethics frequently devolves into attempts by those opposed to veganism to prove that there are situations in which it is morally acceptable to consume animal products. If they can prove that it is acceptable to be non-vegan in one situation, the thinking seems to be that they have proved that it is acceptable never to be a vegan. Thus, because it is not morally objectionable to eat the carcass of an animal who died of natural causes, we are told that it is acceptable to eat animals full stop. That is absurd, because it is equivalent …

Intention And Value, Joseph Raz

Faculty Scholarship

In previous writings, I joined those who take the view that action with an intention is an action for (what the agent takes to be) a reason, where whatever value there is in the action is a reason for it. This paper sketches the role of reasons and intentions in leading to action with an intention. Section 1 explains that though belief in the value of the intended action is not an essential constituent of intentions, nevertheless when humans act with an intention they act in the belief that there is value in the action. Section 2 explains the relative …

Comments: When Psychology Answers Constitutional Questions: The Eighth Amendment And Juvenile Sentencing, Emily M. Steiner

University of Baltimore Law Review

While weighing whether or not to turn himself in for murder and surrender to prison, a 23-year-old law student questions the high premium placed on imprisonment as a rehabilitative measure. After finally submitting to imprisonment, however, Rodion Raskolnikov comes to understand the value of atoning for his crimes and how his punishment correlates with societal justice. The balance struck between an appropriate amount of suffering and society’s need for justice is at the heart of Raskolnikov’s character development.

Despite Raskolnikov’s imprisonment and accompanying character transformation, one important question remains unanswered by Fyodor Dostoevsky’s novel: at what point does a punishment …

Review Of The Choice Theory Of Contracts, Nicolas Cornell

Reviews

This book aims to provide a new approach to thinking about the role of contract law in a liberal state. The fundamental idea is that the law should affirmatively facilitate citizens' autonomy by creating and sustaining various different types of contractual relationships so that citizens have the option to choose among them. The authors start from the idea that "bargaining for terms is not the dominant mode of contracting . . . the mainstay of present-day contracting is the choice among types" (2-3). We choose to relate as employees or independent contractors, married or just cohabiting, merchants selling goods or …

Beyond Borders: Martin Luther King, Jr., Africa, And Pan Africanism, Jeremy I. Levitt

Journal Publications

This modest essay was a work of love in honor of Henry J. Richardson III, my dear brother, friend, mentor, and father in international law. Hank is universally recognized as the Dean of Black international law scholars and lawyers in the United States (U.S.), Africa, and beyond. He has single-handedly mentored three generations of international lawyers, influenced three generations of international legal scholarship, and established the Black International Tradition (BIT), which "stretches back to the very origins of our nation, preceding even the Constitution." His works on Dr. Martin Luther King Jr.'s (King) leadership, authority, and ministry as a global …

Is Surrogacy Ethically Problematic?, Leslie P. Francis

Utah Law Faculty Scholarship

This chapter takes up less well-trodden questions about whether a surrogacy arrangement in which one person carries a pregnancy for another is ethically problematic in itself—and if so, why. Pregnancy and delivery are quintessential bodily labor. One set of arguments tests whether carrying a pregnancy is the type of bodily labor one person ethically may perform for another, whether or not for pay. These arguments contend that surrogacy cannot be a permissible service, no matter how well intended or structured. Another set of questions probes the value and identity of the child, asking whether surrogacy is inevitably akin to baby …

Popular Culture And Legal Pluralism: Narrative As Law. By Wendy A. Adams [Book Review], Dana Neacsu

Law Faculty Publications

Wendy Adams’ book is published in Routledge's “Law, Justice, and Power” series, edited by Austin Sarat. Like Sarat, Adams, who teaches law at McGill University, belongs to the school of "cultural studies of law". Thus, her writing is refreshingly cosmopolitan and interdisciplinary. Her project is to build a “legal narrative,” which is a framework for popular culture as law, where illegal acts could easily become re-imagined in an alternative legality. She argues that “legal texts originating with the state may well be of less significance in creating legal meaning in our lives than the representations of law in popular culture.”

Regulating Human Germline Modification In Light Of Crispr, Sarah Ashley Barnett

University of Richmond Law Review

No abstract provided.

Sources In Legal Positivist Theories, David Lefkowitz

Philosophy Faculty Publications

The debate about positivism in general legal theory or in the international legal scholarship manifests so many different, if not conflicting, meanings of positivism—even among legal positivists themselves—that the debate about legal positivism has proved almost unfathomable and unintelligible.

No other approach to theorizing international law is more closely associated with and dependent upon the development of an account of its sources than is positivism. The explanation for this is a simple and familiar one: if there is any thesis regarding (p. 324) law that we can uncontroversially associate with the label ‘legal positivism’, it is the view that a …

What Makes A Social Order Primitive? In Defense Of Hart’S Take On International Law, David Lefkowitz

Philosophy Faculty Publications

The widespread antipathy to Hart's description of international law as a simple or primitive social order, one that lacks a rule of recognition and therefore does not qualify as a legal system, rests on two misunderstandings. First, the absence of a division of labor in identifying, altering, applying, and enforcing law is as much, if not more, central to Hart's understanding of what makes a society primitive as is the absence of any secondary rules at all. Second, it is primarily in terms of the presence of such a division of labor and the implications it has for the ontology …

Efficiency, Enforcement, And Punishment, Jim Staihar

Notre Dame Journal of Law, Ethics & Public Policy

The law and economics literature on punishment reveals strong reasons of efficiency to adopt an extreme enforcement policy for any type of crime as a means to promoting deterrence. Under such an extreme policy, a crime’s severity of punishment would be set extremely high, but its probability of punishment would be set extremely low by minimizing the resources devoted to enforcing the law against the crime. This sort of policy applied to a moderately serious crime, such as a simple assault, would seem strongly unreasonable all things considered. However, it is not immediately obvious why such a policy would be …

The Presumptions Of Classical Liberal Constitutionalism, Matthew J. Lindsay

All Faculty Scholarship

Richard A. Epstein’s The Classical Liberal Constitution is an imposing addition to the burgeoning body of legal scholarship that seeks to “restore” a robust conception of economic liberty and limited government to its rightful place at the center of American constitutionalism. Legislators and judges operating within a “classical liberal conception of government,” Epstein explains, would approach skeptically “[a]ll [regulatory] proposals that deviate from the basic common law protections of life, liberty, and property.” Classical liberal constitutional courts would thus renounce the toothless rational basis review of the post-New Deal “progressive mindset,” and instead subject to exacting scrutiny the government’s “purported …