Showing papers in "Legal Theory in 2002"

Law of states, law of peoples:

Abstract: There are those who believe that the rules governing the international political system are changing fundamentally; a new universal constitutional order is in the making, with profound implications for the constituent units, competencies, structure, and standing of the international legal order (cf. Cassese 1986, 1991; Weller 1997). On the other side, there are those who are profoundly skeptical of any such transformation; they hold that states remain the leading source of all international rules—the limiting factor that ensures that international relations are shaped, and remain anchored to, the politics of the sovereign state (cf. Smith 1987; Holsti 1988; Buzan, Little, and Jones 1993). “In all times,” as Hobbes put it, political powers are “in continual jealousies, and in the state and postures of Gladiators” (1968, 187–8). Despite new legal initiatives, such as the human rights regime, “power politics” remain the bedrock of international relations; plus ca change, plus c’est la meme chose.

Law, plans and practical reason

Abstract: I. MORALITY OR CONVENTION?American lawyers are audacious by nature and have been known, on more than one occasion, to make outrageous arguments on behalf of their clients. Yet there is one claim that even the most shameless of lawyers would not put forward in an American court: No one would ever challenge the idea that the United States Constitution is law in the United States.1. Imagine a lawyer saying to a judge: “Yes, your honor, I concede that my client purposefully engaged in multiple acts of counterfeiting. But, unfortunately for the prosecution, Article I of the Constitution is not good law, and hence Congress lacks the authority to criminalize counterfeiting. The court has no choice but to set my client free.” For if there is one proposition of law that enjoys universal acceptance by the bench and is held with unshakable conviction, it is that the United States Constitution determines the authority structure of the federal government and is legally binding on all officials.

Collective persons and powers

Abstract: INTRODUCTION There is a type of organization found in certain collectivities that makes them into subjects in their own right, giving them a way of being minded that is starkly discontinuous with the mentality of their members. This claim in social ontology is strong enough to ground talk of such collectivities as entities that are psychologically autonomous and that constitute institutional persons. Yet, unlike some traditional doctrines (Runciman 1997), it does not spring from a rejection of common sense. I try to argue here that the claim is supported by the implications of a distinctive social paradox—the discursive dilemma—and is consistent with a denial that our minds are subsumed in a higher form of Geist or in any variety of collective consciousness. And having done that, I draw attention to one way in which the claim may prove to have policy-making implications.

Rethinking the Offense Principle

Abstract: This chapter explores the Offense Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: that offensive conduct must be a wrong, and that the conduct must also lead to harm. The chapter considers the Offense Principle and suggests that Feinberg's account of that principle is incomplete. It suggests that the distinction between directly harmful and offensive actions does not correspond to the distinction between the Harm and Offense Principles, because the scope of the Harm Principle is broader than is generally recognized. The deficiency in Feinberg's analysis lies in his equation of offense with affront to sensibility. The Harm Principle is about wrongful actions that lead to harm; the distinction between the Harm Principle and the Offense Principle does not track the distinction between directly harmful and offensive actions.

The normative functions of coercion claims

Abstract: INTRODUCTIONA says to B: “Unless you x, I will y.” Or, equivalently, “I will –y if and only if you x.” Is this proposal coercive? If B performs x has he been coerced? Is this an instance of coercion? Moral and political philosophers, as well as legal theorists, have struggled with these questions at least since Aristotle but have been tackling them with renewed vigor since Robert Nozick’s seminal 1969 article.Robert Nozick, Coercion, in PHILOSOPHY, SCIENCE AND METHOD 440 (Sidney Morgenbesser et al., ed. 1969). And, happily, scholarly efforts over the past few decades have substantially advanced our understanding.The most comprehensive account, which explores coercion from both legal and philosophical perspectives, is Alan Wertheimer, COERCION (1987). Other particularly valuable contributions to a substantial literature include Joel Feinberg, HARM TO SELF 189–268 (1986); Harry G. Frankfurt, Coercion and Moral Responsibility, in ESSAYS ON FREEDOM OF ACTION 63 (Ted Honderich ed. 1973); Vinit Haksar, Coercive Proposals, 4 POL. THEORY 65 (1976); Daniel Lyons, Welcome Threats and Coercive Offers, 50 PHIL. 425 (1975); Peter Westen, “Freedom” and “Coercion”—Virtue Words and Vice Words, 1985 DUKE L.J. 541; and David Zimmerman, Coercive Wage Offers, 10 PHIL. & PUB. AFFAIRS 121 (1981). Most significantly, in my view, they have made increasingly clear (despite a few remaining dissenters) that answers to these coercion questions are thoroughly moralized in the sense that the questions cannot be resolved by reference solely to nonmoral facts. But if the answers themselves are moralized, so too, of course, are the questions. That is, coercion claims arise, and stake a claim to our attention, in order to serve some sort—or sorts—of normative needs.

The Collective Work of Citizenship

Abstract: I. INTRODUCTION Ian McEwan’s Enduring Love opens with a scene as powerful as any novel has given us in recent years: The pilot of a hot-air balloon, down in a field, is struggling against a sudden gust to get control; the balloon’s basket contains a child, perhaps the pilot’s son. The novel’s narrator, lunching in the countryside, realizes with horror that the pilot cannot gain control, that the balloon will be lifted up by the wind and almost certainly blown into high-tension lines nearby. Fortunately there are some others who have also spotted the problem, and the narrator and they converge on the balloon to help the pilot secure it. They are eager but uncoordinated; as McEwan says: “There may have been a communality of purpose, but we were never a team.”

Shapiro on legal positivism and jointly intentional activity

Abstract: I. LEGAL POSITIVISM AND JOINTLY INTENTIONAL ACTIONShapiro asks: “[W]hat ultimately makes it the case that a particular legal system has a particular authority structure?” (p. 388).1. This is a revised version of my response to Scott Shapiro’s Law, Plans, and Practical Reason address at the Yale Workshop on Participation and Commitment in Law, Politics, and Morality (October, 2001). Parenthetical page references are to Shapiro’s paper on p. 387 in this issue. “The legal positivist answer,” Shapiro notes, “would not point to a moral fact but rather to a social fact.” In the case Shapiro highlights, for example, the legal “positivist would argue that it is simply true by legal convention that the United States Constitution is the law of the United States” (p. 388). Shapiro aims at developing a novel version of this answer. On his view, the determinants of legal authority are certain structures of intentions and plans embedded in jointly intentional activities in which relevant legal officials are engaged. The problem of legal authority is in part a problem in the philosophy of social action.2. Shapiro is not alone in taking some such tack. Both Jules Coleman and Christopher Kutz, in part under Shapiro’s influence, have also pursued related ideas. Coleman, THE PRACTICE OF PRINCIPLE (Oxford, 2001), see lecture 7; Kutz, The Judicial Community, 11 PHILOSOPHICAL ISSUES 442-469 (2001). Coleman appeals to a strong form of shared activity, namely shared cooperative activity; Kutz appeals to a rather weak form of collective activity. The jointly intentional activity to which Shapiro appeals is in a middle ground here.

The inheritance-based claim to reparations

Abstract: I. INTRODUCTIONThe notion that the current descendants of slaves are owed compensation for slavery is one that receives widespread discussion and support. For example, in 1989, Representative John Conyers of Michigan proposed legislation that would create a commission to explore the effects of slavery on both African-Americans and the United States. More recently, Randall Robinson, in The Debt: What America Owes to Blacks, argued that an important step toward healing racial division and helping poor African-Americans is to compensate blacks for slavery.Randall Robinson, THE DEBT: WHAT AMERICA OWES TO BLACKS (2001). Also, a well-known group of civil-rights and class-action attorneys, including Harvard law professor Charles Ogletree and Johnnie Cochran, is putting together a lawsuit seeking reparations for the descendants of slaves.Reparations for Slavery, 1 (CBS News television broadcast, 2000), available from www.cbsnews. com/stories/2000/11/04/national/main246998.shtml. The debt on some estimates involves trillions of dollars.Larry Neal and James Marketti estimate that the value of unpaid income to slaves amounts to $1.4 trillion and $3.4 trillion respectively. Dinesh D’Souza, THE END OF RACISM 69 n.18 (1995) citing Richard F. America, ed., THE WEALTH OF RACES: THE PRESENT VALUE OF BENEFITS FROM PAST INJUSTICES (1990). In this paper, I argue that the descendants of slaves were not harmed by slavery since they owe their existence to slavery. I then recognize that they may have a claim to compensation based on their having inherited their ancestors’ (i.e., the slaves’) claim to compensation. I argue that the inheritance-based claim is defeated by a number of concerns, particularly doubt surrounding the existence and amount of this inheritance-based claim, concerns about offsets (sums that must be subtracted from compensation), and problems concerning the identity of any contemporary public or private entity that owes compensation. Note that in this essay I will not discuss harms that were not the result of enslavement and hence I set aside some of the claims put forth on behalf of current African-Americans.

“what am i doing?” stanley fish on the possibility of legal theory

Abstract: I. INTRODUCTIONStanley Fish says that theory does not exist, and because it does not exist, it has no consequences. This is doubly disturbing for someone who thinks of himself or herself as a legal theorist. While it is one thing to be dismissed as an impractical ivory tower type, out of touch with the real world of practice, it is quite another to be told that you do not exist at all. If legal theory does not exist, what have I been doing these past years? Indeed, what is it that Fish himself has been up to in his many books and articles devoted to jurisprudential issues?Most of his law-related writings have been collected in Stanley Fish, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (Duke University Press, 1989); Stanley Fish, THERE’S NO SUCH THING AS FREE SPEECH . . . AND IT’S A GOOD THING, TOO (Oxford University Press, 1994); and Stanley Fish, THE TROUBLE WITH PRINCIPLE (Harvard University Press, 1999). Moreover, simply existing is not the limit of a legal theorist’s ambition. We want what we do to have significance, and Fish’s claim that theory has no consequences denies us that status.

Criminal law and legal positivism

Abstract: It is common ground, as between legal positivists and their critics, that the criminal law ought to be codified in such a way that it can be relied on directly by citizens. I shall criticize this “guidance view” of the criminal law, through analyzing the ambitious attempt of Paul Robinson to devise a criminal code wholly shaped by that view. While there are reasons to favor a legislated criminal code over judge-made criminal law, there is no reason to think that such a code must be capable of guiding laypeople directly. Further, there may be reasons to accept limited judicial discretion to reinterpret the scope of the criminal law to meet unanticipated circumstances. Positivists’ preference (inspired by H.L.A Hart) for legislation coupled with limited judicial discretion is not, and should not, be supported by the (wrongly) supposed need to meet the requirements of the “guidance view.”

AMBIGUOUSLY STUNG: Dworkin???s Semantic Sting Reconfigured

Abstract: In Law’s Empire,Ronald Dworkin, LAW’S EMPIRE (1986). Hereinafter referred to as LE. Ronald Dworkin distinguishes two kinds of disagreement legal practitioners can have about law. Lawyers can agree on the criteria a rule must satisfy to be legally valid but disagree on whether it satisfies those criteria. For example, two lawyers might agree that a rule is valid if enacted by the state legislature but disagree on whether it was, in fact, enacted by the state legislature. Such disagreement is empirical in nature and poses no difficulties for positivism. There is, however, a second kind of disagreement that Dworkin believes is inconsistent with positivism. Lawyers can agree on the facts about a rule’s creation but disagree on whether those facts are sufficient to endow the rule with legal authority. This sort of disagreement is theoretical in nature as it concerns the grounds of law, which, according to positivism, are exhausted by the rule of recognition.

Reasons for teamwork

Abstract: I.Often, I have a reason to φ and derived from it I have a reason to try to φ. But not always. A reason for me to try to φ derives from a reason for me to φ only if my trying to φ will contribute to my φing. In cases of two distinct types my trying to φ does not pass this test. In cases of the first type, I lack the ability to φ at all, so nothing that I do (including but not limited to my trying to φ) will contribute to my φing. I will never sing like Ella Fitzgerald whatever I do, so there’s nothing to be gained by trying. In cases of the second type, I have the ability to φ but lack the ability to φ-by-trying-to: trying to φ is counterproductive; it would be better, from the point of view of my φing, if I aimed at something else instead, possibly even at −φing. Trying to impress people, or trying to be funny, or trying to make oneself popular may all have the opposite effect. The funniest thing, indeed, is sometimes trying to be serious in the face of absurdity. On such an occasion a reason to be funny yields no reason to try to be funny, but it does yield a reason to try not to be funny.

Necessity, deterrence, and standing

Abstract: Few criminal defenses have generated as much controversy among philosophers and jurists as has necessity, and few philosophers disagree so thoroughly in political and legal philosophy as do Bentham and Kant. But, in a surprising moment of consensus, Bentham and Kant both argue that an imperiled wrongdoer facing death merits an acquittal because the threat of even capital punishment is insufficient to compel her to obey the law.Jeremy Bentham, THE PRINCIPLES OF MORALS AND LEGISLATION 170 (1948). I will hereafter insert references to this work in the text, following the abbreviation “PML.” Immanuel Kant, METAPHYSICS OF MORALS 28 [6:235] (Gregor ed., 1996). I will hereafter insert references to this work in the text, following the abbreviation “MdS,” to the Prussian Academy pagination. Kant makes the same claim in On the common saying: That may be correct in theory, but it is of no use in practice, PRACTICAL PHILOSOPHY 299n [8:300n] (Gregor ed., 1996). I will work only with the former, as it is later and more developed. At a glance, we might take each therefore to hold that she merits an acquittal on the ground that those who could not conform their actions to the requirements of the law cannot fairly be held to answer for them.George Fletcher glosses Kant this way. Fletcher, RETHINKING CRIMINAL LAW 819 (1978). Michael D. Bayles represents this as the standard reading of both. Bayles, Reconceptualizing Necessity and Duress, 33 WAYNE L. REV. 1191, 1194–1195 (1987). But this misrepresents both Bentham’s and Kant’s views. For each, the nondeterrability of the imperiled wrongdoer does not defeat her responsibility for her actions but rather defeats a condition under which the state enjoys the right to punish wrongdoers. In short, for both Bentham and Kant, the imperiled wrongdoer merits an acquittal because the state lacks standing to punish her. I will call this the ultra vires thesis.

THROWING LIGHT ON THE ROLE OF MORAL PRINCIPLES IN THE LAW:: Further Reflections

Abstract: Inclusive Legal Positivism, as understood throughout this article, consists in the following thesis: It can be the case, though it need not be the case, that a norm’s consistency with some or all of the requirements of morality is a precondition for the norm’s status as a law in this or that jurisdiction. While such a precondition for legal validity is not inherent in the concept of law, it can be imposed as a threshold test under the Rule of Recognition in any particular legal regime. That test, which can be applied by the officials in such a regime to all of the legal norms therein or to only some subset of those norms, is one of the criteria that the officials use for ascertaining the law. Insofar as a criterion of that sort does prevail in any particular legal system, then, some degree of moral worthiness is a necessary condition for the legally authoritative force of each norm that is validated thereunder. Inclusive Legal Positivism, which readily accepts the possibility of such a state of affairs, is inclusive because it allows that moral precepts can figure among the criteria that guide officials’ ascertainment of the law. Inclusivist theorists reject the view that every criterion of law-ascertainment in every possible legal system is focused on nonnormative matters of provenance. At the same time, the Inclusivists are positivists because they also reject the view that every possible legal system includes moral tests among its law-ascertaining criteria. An Inclusive Legal Positivist insists that such tests are contingent features, rather than essential features, of the systems of law wherein they are applied.

Remedial rights and substantive rights in contract law

Abstract: I. INTRODUCTION: LEGAL RIGHTS AND MORAL RIGHTSHaving outlined two different ways of articulating the tort of negligence, John Gardner explains that: “the way we render the ingredients of the tort matters for the defensibility of the regime of liability that it brings in its wake. The reason is that to defend the incidence of the liability one must first defend the assertion of the duty.” And defending the assertion of the duty—given that the law “stands or falls in its own moral legitimacy depending on whether it has the very moral authority that it claims”—involves the following:

Long-shot class actions:

Abstract: Author(s): Schwartz, Warren F. | Abstract: This paper considers the question whether plaintiffs, whose claims pose an important common issue, and are thought to be unlikely to prevail on this issue, should be permitted to maintain a class action in which this issue will be resolved or be required to litigate their claims in individual suits. The paper takes as its point of departure an opinion of Judge Richard Posner offering a novel and complex theoretical justification for requiring plaintiffs to proceed individually. This justification rests on ideas with respect to how claims thought to be unlikely to prevail should be viewed, how the risks created by legal uncertainty should be distributed and how decision making should be structured to take account of the different verdicts various juries might render with respect to identical cases. These ideas have very general and important implications. The paper concludes that Judge Posner's opinion suppresses important issues implicated by his analysis and that consideration of these issues leads to a view much more inclined to permit the class action to go forward than the one advanced by Judge Posner.

Description and analysis in the concept of law

Abstract: In the posthumously published Postscript to The Concept of Law, H.L.A. Hart claimed that the account he advanced in that book was meant to be “both general and descriptive.”H.L.A. Hart, THE CONCEPT OF LAW 239 (2nd ed. with Postscript; Penelope A. Bulloch and Joseph Raz, eds., 1994). Hereinafter “Hart.” The meaning, possibility, and desirability of such an account of legal institutions form the subject of much recent interpretative and critical debate.See, e.g., Stephen Guest, Two Strands in Hart’s Concept of Law: A Comment on the Postscript to Hart’s The Concept of Law, in POSITIVISM TODAY 29-44 (Stephen Guest, ed., 1996); Michael Moore, Hart’s Concluding Scientific Postscript, 4 LEGAL THEORY 301-327 (1998); Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249–282 (1998). Prominent among the disputants is Professor Stephen Perry, who, in several recent articles, offers both an interpretation of Hart’s distinctive methodological aims and a critical argument that counsels their rejection.Stephen Perry, Hart’s Methodological Positivism, 4 LEGAL THEORY 427–467 (1998) (hereinafter “HMP”); The Varieties of Legal Positivism, 9 CAN. J. L. & JURIS. 361–381 (1996) (hereinafter “VLP”); Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 97, 118 (Andrei Marmor ed., 1995) (hereinafter “IMLT”). Perry’s interpretation is worth examining, not only for his claims about Hart, but also for his more general claims and assumptions about what a descriptive theory of law would be expected to look like and what it could hope to accomplish.