1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

The Concept Of Law

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Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism

Retributivist and consequentialist justifications for criminal punishment have contended for generations without either emerging the obvious victor. Indeed, although many commentators have recently announced a retributivist renaissance, it is perhaps more accurate to observe a growing scholarly attraction to "mixed" or "hybrid" theories. And yet most extant mixed theories strike many as unsatisfactory for either of two reasons. The best known mixed theories assign retributivist arguments a too-marginalized role relative to their consequentialist competitors. Others, that avoid this perceived failing, lack hard edges: They assert that desert and good consequences are jointly necessary to the justification of punishment but offer little shape or structure to their inter-relationship. This paper sketches a mixed theory that avoids these pitfalls. It gives retributivist and consequentialist accounts closer to co-top billing, while assigning each a distinct role in the argumentative logic. It accomplishes this task by attending with seriousness to the point of departure for virtually the entire scholarly literature on the justification for criminal punishment. Almost invariably, contributions to that literature start by observing that "punishment stands in need of justification". So-called theories of punishment are, accordingly, efforts to meet that need. Precisely because these theories are situated ab initio within an argumentative dialectic, one might expect their persuasiveness to depend, in part, on how fully and satisfactorily they understand the proposition to which they aim to respond. Surprisingly, however, the vast literature on punishment has given remarkably short shrift to the question of what is meant and entailed by a demand that punishment be justified. This paper seeks to rectify that oversight by analyzing both what it means to demand justification for a given practice and how such a demand can be satisfied. Once armed with a richer understanding of the logical structure of justificatory argumentation, we are better able to see how a mixed theory of punishment might plausibly emerge.

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Punishment and Justification

It is sometimes suggested that philosophical discussions of punishment are plagued by radical dissensus. But this is an overstatement. On at least one matter, a consensus approaches unanimity: punishment stands in need of justification. Very often, this principle constitutes the theorist’s first premise. Of course, proposed responses to the need for justification vary widely. Consequentialist accounts variously emphasize deterrence or incapacitation or norm reinforcement. Retributivist theories are even more diverse. But notwithstanding the variation within each broad camp, both approaches face well-known objections. Briefly, consequentialists are thought misguided for denying the intuitive idea that wrongdoers deserve to suffer, while their opposition to scapegoating is condemned as weak and contingent. Retributivists are said to be unable to explain either why wrongdoers deserve to suffer or why it is permissible for a state to inflict suffering even if deserved. They are also deplored as savage or barbaric. Partly in response to these criticisms, many theorists have expressed a preference for “mixed” or “hybrid” accounts of the justifiability of criminal punishment. The most famous such accounts belonged to John Rawls

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For nearly a quarter of a century, the distinction between justification and excuse has proven almost an obsession among Anglo-American theorists of the criminal law. And the attention has appeared to pay dividends, as it has become one of the rare subjects on which such scholars have reached wide agreement: Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. Consensus thus achieved, theorists have turned to subordinate questions, joining issue most notably on the question of whether justifications are "subjective" - turning upon the actor's reasons for acting - or "objective" - involving only facts independent of the actor's beliefs and motives. This article seeks to demonstrate that the prevailing consensus is wrong. Drawing on the well-known distinction between conduct rules and decision rules, it argues further that the distinction between justification and excuse in the criminal law is only this: A justified action is not criminal, whereas an excused defendant has committed a criminal act but is not punishable. To readers only marginally acquainted with the relevant literature, this claim may seem far from extravagant, for occasional statements to the same effect can be found in the case law and commentary. In fact, however, theorists have not appreciated just how this formulation of the distinction differs from the orthodox one, nor what consequences follow. This article attempts to remedy that defect. One lesson of a systematic investigation of these competing views, for instance, is that the long-running debate over whether justifications, properly understood, are "subjective" or "objective" is misconceived. This is a debate over policy, I argue, not - as it so often purports to be - a matter of conceptual analysis. More generally, this exploration into justification and excuse constitutes a case study in the complex relationship between legal and moral reasoning, and highlights the importance of distinguishing arguments that advance substantive value judgments from those that purport to analyze our conceptual apparatus. It may be that the latter enterprise is no less contestable or value-laden than the former (though perhaps it is). In any event, they are not the very same enterprise and a first step to clear thinking - in the criminal law and elsewhere - is to keep them distinct.

Justification and Excuse, Law and Morality

Recent decades have witnessed a marked increase in efforts to craft a satisfactory definition of coercion. Despite substantial gains in understanding, however, much about coercion remains obscure. This article argues that prior bids to define coercion have not fully succeeded largely because scholars have been seduced by the vision of a single unified concept. This is a mistake, for coercion talk is employed to perform two very different normative functions. First, we apply the coercion label to signal that a given proposal is morally bad and, relatedly, that its maker is morally blameworthy. Second, coercion claims are used to excuse (fully or partially) an individual for engaging in action that would otherwise warrant moral or legal censure. This article demonstrates that the sets of conditions that constitute coercion for these two normative purposes are distinct. In substantiating this thesis, the article identifies the necessary and sufficient conditions that validate each of the two basic types of coercion claims, and also unravels the puzzling relationship among the terms "coercion", "threat", and "offer". Lastly, it shows how distinguishing these two normative functions enables us to resolve a myriad of much - debated cases from the philosophical literature. It is hoped that careful attention to the distinct functions of coercion claims will be of use to legal theorists operating in a wide range of fields, including criminal law, constitutional law, and contracts.

The Normative Functions of Coercion Claims

Critical analysis of originalism should start by confronting a modest puzzle: Most commentators suppose that originalism is deeply controversial, while others complain that it means too many things to mean anything at all. Is one of these views false? If not, how can we square the term's ambiguity with the sense that it captures a subject of genuine debate? Perhaps self-professed originalists champion a version of originalism that their critics don't reject, while the critics challenge a version that proponents don't maintain.Contemporary originalists disagree over many things: Over which feature of the Constitution's original character demands fidelity (framers' intent, ratifiers' understanding, or public meaning); over why such fidelity is required, and over whether this interpretive obligation binds only judges or citizens, legislators, and executive officials too. But on one dimension of potential variability - the dimension of strength - originalists are mostly united: They believe that those who should follow some aspect of a provision's original character must give that original aspect priority over all other considerations. That is, when the original meaning (or intent, etc.) is satisfactorily discernible, the interpreter must follow it. This is the thesis that self-professed originalists maintain and that their critics (the non-originalists) deny. Non-originalists have challenged this thesis on varied wholesale grounds, including: that the target of the originalist search is undiscoverable or nonexistent; that originalism is self-refuting because the framers intended that the Constitution not be interpreted in an originalist vein; and that originalism yields bad outcomes. This Article proceeds differently. Instead of mounting a global objection - one purporting to hold true regardless of the particular arguments on which proponents of originalism rely - I endeavor to catalogue and critically assess the varied arguments proffered in originalism's defense. Those arguments are of two broad types: hard and soft. Originalism is hard when grounded on reasons that purport to render it (in some sense) necessarily true; it is soft when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches. That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected already to accept; soft arguments aim to persuade others to revise their judgments of value or their empirical or predictive assessments. The most common hard arguments contend that originalism is entailed either by intentionalism or by binding constitutionalism. Soft arguments claim that originalist interpretation best serves diverse values like democracy, the rule of law, and substantive goodness. I seek to show that the hard arguments for originalism are false and that the soft arguments are implausible.The upshot is not that constitutional interpretation should disregard framers' intentions, ratifiers' understandings, or original public meanings. Of course we should care about these things. But originalism is a demanding thesis. We can take the original character of the Constitution seriously without treating it as dispositive. That original intents and meanings matter is not enough to render originalism true.

Mitchell N. Berman

Papers

Punishment and Justification

Punishment and Justification

Justification and Excuse, Law and Morality

The Normative Functions of Coercion Claims

Originalism is Bunk