Munir on The Necessary Connections Between Law and Morality: Assessing the Hart-Fuller Debate

Muhammad Munir, International Islamic University, Islamabad, Department of Law, has published The Necessary Connections between Law and Morality: Assessing the Hart-Fuller Debate. Here is the abstract,

This work examines Hart’s argument that law and morality are totally separate from each other. It discusses Hart’s views on whether there are some necessary connections between law and morality; what is the minimum content of natural law for Hart? What is Hart’s methodology regarding the grudge Nazi informer case? Would Hart’s methodology regarding the grudge Nazi informer case make any difference as far as the outcome of the case is concerned? What are Lon Fuller’s eight conditions of inner morality? What are Fuller’s arguments in support of the view that law and morality are inseparable? How did Hart respond to Fuller’s eight conditions of inner morality? The main findings of this work are that Hart believes that the necessary connection between law and morality is that both have common terminology as well as content but it does not mean that morality has influenced law. Hart argues that any legal system must have the minimum content of natural law in order to be good. He invokes a moral principle to justify his methodology regarding the grudge Nazi informer case and to tell the naturalists that they are wrong. Fuller argues that there are eight conditions or principles of inner morality in making a law that must be satisfied by every legal system. He mentions that no compliance with any principle of inner morality means that there is no legal system, however, complete compliance may be difficult in practice. Hart’s rejection of Fuller’s position is absurd and unacceptable.

Download the paper from SSRN at the link.

Jeon on Legal Aid Without Lawyers: How Boston's Nonlawyers Delivered and Shaped Justice for the Poor, 1879-1921 @PovertyLaw_Jrnl @kelppsea @StanfordLaw

Kelsea A. Jeon, Stanford Law School, has published Legal Aid Without Lawyers: How Boston’s Nonlawyers Delivered and Shaped Justice for the Poor, 1879–1921 at 29 Georgetown Journal on Poverty Law and Policy 122 (2022). Here is the abstract.

Women nonlawyers were some of the first actors to provide organized legal aid to America’s poor. Yet, today, unauthorized practice of law statutes bar nonlawyers from providing legal help, citing concerns about malpractice and public harm. This Article uses a historical case study to challenge conceptions that nonlawyers cannot provide effective legal services to the people. The study focuses on the development of legal aid in Boston via two organizations, the nonlawyer-led Women’s Educational and Industrial Union and the lawyer-centric Boston Legal Aid Society. Although organized legal aid in Boston began with the nonlawyers at the Union, they were eventually overtaken by the lawyer-centric Legal Aid Society. This paper examines this transition in legal aid practitioners, emphasizing how nonlawyers provided effective legal help. In doing so, it challenges the modern-day conception that access to justice requires access to an attorney and serves as a powerful counter to claims that nonlawyer practitioners endanger the public.

Download the article from the journal's website at the link.

Robbins on Explaining Florida Man @AUWCL @fsulawreview

Ira P. Robbins, American University College of Law, is publishing Explaining Florida Man in the Florida State University Law Review. Here is the abstract.

“Florida Man” is a popular cultural phenomenon in which journalists report on Floridians’ unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people’s attention nationwide. Florida Man is one of the latest unique trends to come from the Sunshine State and contributes to Florida’s reputation as a quirky place. Explanations for Florida Man center on Florida’s Public Records Law, which is known as one of the most expansive open records laws in the country. All states and the District of Columbia have open records laws that establish procedures for individuals to obtain access to public records in the spirit of government transparency. Because many Florida Man stories are based on arrest records and incident reports and incorporate mugshots, those who have written about Florida Man claim that the Florida Public Records Law, which allows reporters to access those records, is behind the trend. The problem with this theory is that it incorrectly implies that Florida’s Public Records Law offers journalists advantages in writing stories that other states’ laws do not. Despite the broad grant of access to police documents that Florida’s open records law provides, other states’ open records laws similarly provide the public with access to arrest records, incident reports, and, although to a lesser extent, mugshots. Other provisions of Florida’s Public Records Law that contribute to the ease of access to Florida’s public records compared with other states’ equivalent laws are largely irrelevant to Florida Man’s existence. Even coupled with the characteristics of Florida and its residents that many people claim are unique, the open records law-based theory for Florida Man’s existence falls short of explaining the phenomenon. This Article posits that the primary reasons for Florida Man’s popularity are preexisting popular culture trends and the venue in which Florida Man rose to fame: the internet. Internet platforms allow a wide audience—which may already have been receptive to jokes about Florida due to its reputation for being a newsworthy state—to easily consume, share, and re-share Florida Man content, inspiring journalists to continue to write Florida Man stories. This cycle of generation and consumption of Florida Man stories has allowed Florida Man to become one of the longest-living memes in internet history. While the Florida Public Records Law and characteristics of Florida and its people work together to provide raw material for Florida Man articles, the heretofore unmentioned popular culture and internet trend factors of the phenomenon complete the story behind Florida Man’s existence.

Download the article from SSRN at the link.

Palmer on The Legal History and Framework of the New Zealand Constitution

Sir Geoffrey Palmer, QC, Victoria University of Wellington Faculty of Law, has published The Legal History and Framework of the New Zealand Constitution as Victoria University of Wellington Legal Research Paper 30/2022. Here is the abstract.

A paper presented to the “Building the Constitution” conference, held on 7–8 April 2000. The paper provides an overview of New Zealand’s constitutional history and system. It notes that uncertainty surrounding New Zealand's constitution renders any assessment of its adequacy quite challenging. Nevertheless, it ends by posing a number of questions for reformers to consider.

Download the paper from SSRN at the link.

Levinson and Graber on Justice Accused at 45: Reflections on Robert Cover's Masterwork @TouroLawReview @UTexasLaw @mgraber_ @UMDLaw

Sanford Levinson, University of Texas Law School, and Mark Graber, University of Maryland School of Law, have published Justice Accused at 45: Reflections on Robert Cover's Masterwork at 37 Touro Law Review 1851 (2022). Here is the abstract.

We raise some questions about Robert Cover’s Justice Accused, not to criticize magnificent and audacious scholarship motivated by the most pressing moral concerns, but to consider the timeliness and timelessness of certain themes explored in that masterwork. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases played out in the antebellum United States, played out in the United States when Cover was writing, and play out in the United States today. Cover’s opus was a work of the Great Society, even if the text discusses the American judiciary of more than a century before. The moral-formal dilemma faced by the justices Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the law in light of the antislavery values of many northern constituencies or defer to laws that reflected the moral values of politicians eager to compromise on slavery to preserve a bisectional consensus. As times change, so does the moral-formal dilemma. The civil rights movement and, for many, the anti-War movement, at least as viewed from the academy in the 1960s, presented the moral-formal dilemma in pure form. Jim Crow laws were unjust. Young men were being drafted to fight an immoral war. Every respectable ethicist and every decent lawyer, at least as defined by the bulk of the academy, understood that morality and law were opposed. The sole question in the academy was whether laws widely agreed to be immoral should be respected and obeyed. One feature of much contemporary civil disobedience—consider illegal protests at abortion clinics or a public willingness to disobey state bans on abortion—is that the moral debate is marked by good faith disagreement on both sides. Pro-choice and pro-life activists in this environment face the same more-formal dilemma, as each decides the extent to which the Constitution reflects the values they cherish and the extent to which they have obligations to respect the Constitution or official decisions interpreting the Constitution that either fail to protect all women from exercising their fundamental right to reproductive choice or fail to prevent the wholesale slaughter of the unborn. Donald Trump and the contemporary Republican party may be providing Americans with a new variation on the moral-formal dilemma grappled with by nineteenth century justices in fugitive slave cases and twentieth century justices in civil rights cases. The moral-formal dilemma many Americans in institutions far remote from courts are facing is whether to follow the letter of the law and retain the basic structure of constitutional law in the United States even when following and maintaining the letter of the law threatens to warp the constitutional fabric, undermine the political regime, and risk an environmental catastrophe that could easily leave humans near extinction.

Download the article from the Touro Law Review website at the link.

Balkin on Constitutional Memories @jackbalkin @YaleLawSch

Jack M. Balkin, Yale University Law School, has published Constitutional Memories. Here is the abstract.

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation— remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts. The use of memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory. What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. What is erased from memory, by contrast, can make no claims on us. Many of the most important forms of constitutional interpretation— arguments from precedent, arguments from tradition, and arguments from original meaning or understanding—involve an mixture of memory and erasure. They emphasize certain elements of the past while effacing others. Yet the selectivity and erasure of constitutional memory can have ideological effects, and can bestow on constitutional claims a legitimacy that they do not always deserve. The scope of constitutional memory matters to legitimacy because many features of constitutional legitimacy depend, whether directly or indirectly, on implicit notions of societal consensus, majority opinion, and the consent of the governed. But if the consensus is not real, if the majority is artificially constructed, and if the consent of the governed is not genuine, this undermines assumptions about legitimacy. At stake in constitutional memory is which historical figures and movements will count as makers of constitutional meaning for the present. If the memory of the adoption of the Constitution and its amendments features only a small group of white men as the central actors, the American constitutional tradition belongs to them and it is their views that matter. Women and racial minorities have constitutional rights only because these white men allowed them to have them. This is a false portrait of the country’s history. When we engage in constitutional construction therefore, we should embrace an expansive conception of collective constitutional memory, including the views and experiences of people left out of formal constitution-making, as well as the claims of social and political movements that have shaped our constitutional tradition. These can provide both positive and negative examples for the present. Not all of the lessons of constitutional memory are positive. Not everyone in the past was heroic, and even people and groups that we celebrate today had serious flaws and failings. Some of the lessons of constitutional memory are deeply ambivalent. But all can be grist for the mill of constitutional construction. When we implement and apply the Constitution in our own time, many different groups and many different people can be makers of constitutional meaning. What matters is what their ideas and experiences mean for the present, and whether they can serve as positive or negative examples for us today.

Download the article from SSRN at the link.

Forthcoming, June 2022: Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Information Age (2022) @JSilbey @stanfordpress @BU_Law

Forthcoming: Jessica Silbey, Professor of Law, Boston University, is publishing Against Progress: Intellectual Property and Fundamental Values in the Information Age (Stanford University Press, 2022). Here from the publisher's website is a description of the book's contents.

When first written into the Constitution, intellectual property aimed to facilitate "progress of science and the useful arts" by granting rights to authors and inventors. Today, when rapid technological evolution accompanies growing wealth inequality and political and social divisiveness, the constitutional goal of "progress" may pertain to more basic, human values, redirecting IP's emphasis to the commonweal instead of private interests. Against Progress considers contemporary debates about intellectual property law as concerning the relationship between the constitutional mandate of progress and fundamental values, such as equality, privacy, and distributive justice, that are increasingly challenged in today's internet age. Following a legal analysis of various intellectual property court cases, Jessica Silbey examines the experiences of everyday creators and innovators navigating ownership, sharing, and sustainability within the internet eco-system and current IP laws. Crucially, the book encourages refiguring the substance of "progress" and the function of intellectual property in terms that demonstrate the urgency of art and science to social justice today.

ICYMI: Jefferson on Hidden Women of History: Flos Greig, Australia's First Female Lawyer and Early Innovator @reneeknake

ICYMI: Renee (Newman) Knake Jefferson, University of Houston Law Center, has published Hidden Women of History: Flos Greig, Australia’s First Female Lawyer and Early Innovator at The Conversation (July 23, 2019). Here is the abstract.

When Grata Flos Matilda Greig walked into her first law school class at the University of Melbourne in 1897, it was illegal for women to become lawyers. But though the legal system did not even recognize her as a person, she won the right to practice and helped thousands of other women access justice. In defying the law, Greig literally changed its face. That she did so is a story worthy of history books. And how she achieved this offers key insights for women a century later as they navigate leadership roles in the legal profession and beyond. This short essay tells her overlooked story.

Download the essay from SSRN at the link. 

Schwartz on Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor's "Dishonest Scrivener" @WisconsinLaw

David S. Schwartz, University of Wisconsin Law School, is publishing Gouverneur Morris, The Committee of Style, and the Federalist Constitution: A Commentary on Treanor's 'Dishonest Scrivener' in volume 120 of the Michigan Law Review Online (2022). Here is the abstract.

Dean William Treanor's masterful article, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, makes a major contribution to scholarship on the founding. He uncovers a body of constitutional interpretations favored by advocates of a strong national government and emphasized by the Federalist party in the early decades of politics and policy under the Constitution, raising significant questions about present-day originalism in the process. Treanor particularly emphasizes how Constitutional Convention delegate Gouverneur Morris, acting as primary draftsman on the 'Committee of Style' which put the finishing touches on the draft 'Constitution' crafted language favorable to Federalist interpretations. But Treanor disserves his otherwise compelling argument with a narrative that portrays Morris as a 'dishonest scrivener' who 'smuggled in' substantive revisions to impose his own views, presumably against the will of an inattentive Convention majority. This narrative framing 'not sustained by the available evidence' digresses from Treanor's core argument, and works against it. A better interpretation of the historical evidence is that the Committee of Style draft had broad support and made no substantive revisions that escaped the notice of the Convention. The fifteen revisions by the Committee of Style cited by Treanor do not support the charge of 'dishonest scrivening'. Ultimately, we can dismiss the 'dishonest scrivener' narrative, while recognizing Treanor's valuable, core insights that Morris was a key player at the Convention and that the Committee of Style reinforced Federalist understandings of the original Constitution.

Download the article from SSRN at the link.

Grajzl and Murrell on Families and Inheritance: Law and Development in Pre-Industrial England

Peter Grajzl, Washington and Lee University, Department of Economics; CESifo, and Peter Murrell, University of Maryland, Department of Economics, have published Of Families and Inheritance: Law and Development in Pre-Industrial England. Here is the abstract.

We examine how pre-industrial English caselaw development on land, inheritance, and families affected, and was affected by, economic and demographic outcomes. Our yearly measures of caselaw development are derived from existing topic-model estimates that reflect a comprehensive corpus of reports on pre-1765 court cases. We estimate a structural VAR model using these caselaw time-series in combination with measures of real per-capita income and vital rates. Pre-industrial caselaw development profoundly shaped economic development. Strikingly, the areas of caselaw that stimulated real-income growth are on families and inheritance, not land. Caselaw on families and inheritance was especially important as a driver of real income and birth rates after 1710. Caselaw developments were spurred primarily by changes in real income, not by changes in vital rates. Incorporation of endogenous caselaw development leaves intact the findings of the existing literature that examines pre-industrial economic-demographic interactions. However, our findings do imply that any Malthusian trap that was present in pre-industrial England was made less severe as a result of developments in caselaw on families and inheritance.

Download the article from SSRN at the link.

Gribnau and Hughes on The Enlightenment and Influence of Social Contract Theory on Taxation @HGribnau @TilburgLaw @UniofNottingham

Hans Gribnau, Tilburg Law School; Leiden University, and Jane Frecknall Hughes, University of Nottingham, have published The Enlightenment and Influence of Social Contract Theory on Taxation. Here is the abstract.

This paper considers some of the most important political philosophers of the Enlightenment (taken as broad concept) – thinkers whose reflections on the idea of a social contract we relate to their views on taxation. Hobbes argues for an (almost) absolute political sovereignty and legal authority and corresponding obedience of citizens constituted by the social contract. For Hobbes, taxes are justified as the price of security. He advocates the benefit theory of taxation, best measured by consumption. The same goes for Locke, although for him the social contract serves to guarantee the individual’s property rights which embody his liberty. Taxes are the price of the protection of the right to property. Both Montesquieu and Hume do not have need for a social contract: man living in societies is a fact of life. Their focus is on legitimate government rather than sovereignty and obedience. Hume inherently adheres to the benefit theory of taxation as paying tax is contributing to society on which one depends to survive. Montesquieu is a proponent of indirect taxation, though he considers progressive taxation and a subsistence minimum which must not to be taxed. For him, tax fairness is a contextual affair, since taxation should be relative to a given form of government. Rousseau radicalises the notion of the social contract which is a device to protect an equal freedom for all. He transposes the emerging new ideal of equality to taxation which not only is to enable government to protect its citizens, but also to consider their subsistence. Taxes should enhance liberty and equality (distributive justice). Thus, progressive taxation based on the ability to pay is put on the agenda. Rousseau’s popular sovereignty was self-evident for Paine, the Federalists and Anti-Federalists alike. Paine argued for a more radical redistribution as taxes should pay for welfare provision which was part of his proposals for reform. Both the Federalists and Anti-Federalists elaborated on Montesquieu’s plea for the separation and distribution of powers, but unlike in Montesquieu, their take focus was on multi-level governance. Like the other theorists, they approached taxation from their political-philosophical perspective.

Download the article from SSRN at the link.

Twenty Minutes with the Devil at The Street, Canberra, June 17-25, 2022 @luisenantipoda

From Thom Giddens, University of Dundee, via the Law and CUlture mailing list, on behalf of Desmond Manderson:

Yes, after no less than three lockdown delays over the past two years, Twenty Minutes with the Devil is finally on. Fri 17 – Sat 25 June, at The Street, Canberra’s home of professional theatre.  Book now if you haven’t already done so – and pass the word on to your students, your colleagues, and your friends!

 

Des

 

 

Twenty Minutes with the Devil is a black comedy, a high-octane thriller, and non-stop entertainment. It is based on real life events surrounding the capture of Mexico’s most notorious narco in 2016. But beneath the headlines, the play probes deeper questions. It brings together the life work of its two authors, well-known legal scholars and teachers Luis Gómez Romero and Desmond Manderson. What does law and justice matter when they seem so very far apart?

 

Two lowly cops and a narco think they have all the answers. Angela believes that if you follow the law, justice will look after itself. Romulo knows better, but the hide of a cynic often conceals a revolutionary heart. El Ticho doesn’t care about justice but he treats the law as a plaything he can twist to his own advantage. Now they’re trapped in a love hotel in the middle of the desert. The army and the cartels are descending and no one knows who will live to tell the tale. The pressure of the ticking clock and the impending storm of violence forces all three to confront what they think matters in the world and what they are prepared to do – to survive.

 

The play is set against the terrible drug wars which have led to the brutal deaths of hundreds of thousands of people in Mexico alone, and destroyed its legal system, its police, its society. But drugs are just a symptom. All over the world, the gap between law and justice seems to yawn wider than ever.

 

Rómulo: Drug’s just the excuse, man, ‘coz the real drug is money. I never met anyone who had enough of it – and millions’d kill for it in a heartbeat. Money buys you violence — violence gets you money. It don’t come cheap. It costs. Know what? Reckon it’ll cost more and more and more and to hell with the rest of us.

 

Climate change, inequality, politics failing and governments giving up. These emergencies effect all of us. Mostly, we look the other way and try to get on with their lives. But our three characters do not have that luxury. It’s now or never. They are in lockdown. And as we all know, there’s nothing like a lockdown to concentrate the mind. Is justice part of the solution? Is law part of the problem? These are urgent questions, and time is running out.

 

El Ticho: Any minute, my men are going to come storming through that door. They’re not going to knock – room service. You think you can stop them? You and that flightless hairy-winged angel of the lord?

 

 

Newly published: Marcy J. Dinius, The Textual Effects of David Walker's "Appeal": Print-Based Activism Against Slavery, Racism, and Discrimination, 1829-1851 (University of Pennsylvania Press, 2022) @PennPress

Newly published: Marcy J. Dinius, The Textual Effects of David Walker's "Appeal": Print-Based Activism Against Slavery, Racism, and Discrimination, 1829-1851 (University of Pennsylvania Press, 2022). Here from the publisher's website is a description of the book's content.

Historians and literary historians alike recognize David Walker's Appeal to the Coloured Citizens of the World (1829-1830) as one of the most politically radical and consequential antislavery texts ever published, yet the pamphlet's significant impact on North American nineteenth-century print-based activism has gone under-examined. In The Textual Effects of David Walker's "Appeal" Marcy J. Dinius offers the first in-depth analysis of Walker's argumentatively and typographically radical pamphlet and its direct influence on five Black and Indigenous activist authors, Maria W. Stewart, William Apess, William Paul Quinn, Henry Highland Garnet, and Paola Brown, and the pamphlets that they wrote and published in the United States and Canada between 1831 and 1851. She also examines how Walker's Appeal exerted a powerful and lasting influence on William Lloyd Garrison's Liberator and other publications by White antislavery activists. Dinius contends that scholars have neglected the positive, transnational, and transformative effects of Walker's Appeal on print-based political activism and literary and book history—that is, its primarily textual effects—due to an enduringly narrow focus on the violence that the pamphlet may have occasioned. She offers as an alternative a broadened view of activism and resistance that centers the works of Walker, Stewart, Apess, Quinn, Garnet, and Brown within an exploration of radical forms of authorship, publication, civic participation, and resistance. In doing so, she has written a major contribution to African American literary studies and the history of the book in antebellum America.

Eyer on Disentangling Textualism and Originalism @katie_eyer @RutgersLaw

Katie R. Eyer, Rutgers University Law School, has published Disentangling Textualism and Originalism. Here is the abstract.

Textualism and originalism are not the same interpretive theory. Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. It should be self-evident that these are not—put simply—the same thing. While textualism and originalism may in some circumstances be harnessed to work in tandem—or may in some circumstances lead to the same result—they are different inquiries, and command fidelity to different ultimate guiding principles. Why should this common-sense observation warrant academic commentary? Because both textualists and originalists—and even those who eschew such methodologies—are surprisingly inclined to conflate the two. Indeed, it is common (though not universal) today for textualists/originalists to treat textualism and originalism as a single inseparable package (adjudicated under the moniker of “original public meaning”), and to decline to rigorously delineate them in both theorizing and analysis. In this Essay, I argue that disentangling textualism and originalism is critical to the future vibrancy and legitimacy of textualism as an interpretive methodology. When conflated with originalism, textualism holds almost endless opportunities for partisan manipulation of precisely the kind that textualism’s critics have decried. Moreover, many types of originalist inquiry can lead judges to results inconsistent with text—and thus textualism. In short, for an adjudicator to have genuine fidelity to any interpretive theory, it is critical for the adjudicator to know to which theory, in cases of conflict, the adjudicator ultimately subscribes.

Download the essay from SSRN at the link.

Lloyd on Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis @LloydEsq @WFULawSchool

Harold Anthony Lloyd, Wake Forest University School of Law, has published Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis. Here is the abstract.

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning." This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well.

Download the article from SSRN at the link.

Heyman on Transforming Natural Religion: An Essay on Religious Liberty and the Constitution @SteveHeyman6 @BYULRev @ChicagoKentLaw

Steven J. Heyman, Chicago-Kent College of Law, is publishing Transforming Natural Religion: An Essay on Religious Liberty and the Constitution in volume 48 of the Brigham Young University Law Review (2023). Here is the abstract.

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding-era Americans thought when they incorporated the Free Exercise Clause of the First Amendment into the constitutional order they were creating. Contrary to the views taken by many judges and scholars, the Clause’s ideological background is best understood not in terms of either Enlightenment secularism or Christian Evangelicalism, but rather in terms of what the eighteenth century called natural religion. That view held that human beings were capable of using reason to discern the most basic principles of religion: that the world was created by God, that people ought to worship him, and that he has given them a law of nature that establishes their basic rights and duties in relation to one another. One of the most important rights was religious liberty: because religion was rooted in reason, individuals had a natural and inalienable right to form their own beliefs and to live and worship in accord with them. At the same time, that right was bounded by a duty to respect the inherent rights of other individuals as well as the legitimate authority of the state. In many ways, the eighteenth-century view was a humanistic one. At its core was a recognition of the inherent worth of human beings. This view held that individuals must be free to use their own minds in pursuit of truth, rather than having beliefs imposed upon them by religious or political authority. And it held that people with diverse beliefs were capable of living together in an open, self-governing society based on mutual acceptance and respect. These principles continue to be central to any adequate understanding of the Free Exercise Clause. Of course, we no longer live in the same intellectual world as the founders. In the wake of Darwinian evolutionary theory and other modern scientific developments, it is no longer widely accepted that reason alone can establish the existence of God or natural law. The question then arises whether it is possible to recast the eighteenth-century view in a way that retains its virtues without depending on controversial theological ideas or improperly favoring religious believers over others. In this Article, I begin to develop such a view, which I call liberal humanism. Like the classical theory, this view stresses the ideals of human freedom, equality, and dignity that informed the adoption of the First Amendment. But it seeks to broaden the classical theory in a way that reflects our contemporary understanding of those ideals. The Article begins by summarizing the classical view and showing how it was used by Thomas Jefferson, James Madison, and a broad coalition of groups as a rationale for protecting religious freedom, first at the state and then at the federal level. Next, I discuss how the idea of natural religion can be transformed by moving away from the eighteenth century’s ontological approach (an approach that held that reason could demonstrate the existence of God as well as the moral implications that flowed from it) and toward a more phenomenological view of religion, which focuses on the ways that human beings search for meaning and value in the world. People experience meaning and value in all areas of life, and they integrate those experiences into more comprehensive conceptions of the world and of their place within it. Some of these worldviews are religious ones which find ultimate meaning in a transcendent realm, while others are secular ones which find such meaning within this world. Both kinds of worldviews can be reasonable, and so both are entitled to respect. For these reasons, the Constitution should be interpreted to protect not only religious freedom but also a comparable right to form and live in accord with secular beliefs. Next, I show that just as the eighteenth-century view provided an account of natural rights, liberal humanism can provide an account of fundamental rights within our modern constitutional order. I then discuss the light that the liberal humanist view can shed on two important issues in contemporary free exercise jurisprudence: whether individuals are entitled to exemptions from laws that conflict with their conscientious beliefs, and if so, whether those exemptions may be granted only to those who hold religious rather than secular beliefs. The Article concludes with some brief reflections on how this approach can enable the secular and religious forces in our cultural battles to find some common ground.

Download the article from SSRN at the link.

Dane on Robert Cover and Legal Pluralism--Redux @perrydane @RutgersLaw

Perry Dane, Rutgers, The State University of New Jersey, Rutgers Law School, has published Robert Cover and Legal Pluralism - Redux. Here is the abstract.

This short essay meditates on and reconsiders Robert Cover’s distinct vision of legal pluralism in the light of today’s political and legal environment. In a 2013 talk, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3302988, I discussed three dimensions of Cover’s legal pluralism: its centering of narrative, its frank focus on state violence and non-state resistance in the encounter of legal orders, and its important insight that non-state communities could articulate and defend their own distinct accounts of the state’s legal order. Each of these ideas looks different today than it did even a few years ago. The narrative of the moment is a specific form of polarization that threatens to hollow out whatever nomos comes within its expanding orbit. The state today is no longer just an imperial ruler asserting its will over smaller scale, paedeic communities, but an increasingly fragile legal order that has become deeply vulnerable to a jurispathy from below. And the scholarly effort to chart the complex dynamics of legal encounter can verge on looking precious in the light of our current brokenness. Nevertheless, it remains vital to take up Robert Cover’s challenge and continue to try to search for an account of nomos and narrative that can make sense of both richly thick communities and atavistic teams, of both imperial states and fragile polities.

Download the essay from SSRN at the link.