Weinrib on Ownership, Use, and Exclusivity: The Kantian Approach @UTLaw

Ernest J. Weinrib, University of Toronto Faculty of Law, has published, Ownership, Use, and Exclusivity: The Kantian Approach at 31 Ratio Juris 123 (2018). Here is the abstract.

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity.

The full text is not available from SSRN for download.

Meyler on LIberal Constitutionalism and the Sovereign Pardon

Bernadette A. Meyler, Stanford Law School, is publishing Liberal Constitutionalism and the Sovereign Pardon in The Scaffold of Sovereignty: Global and Aesthetic Perspectives on the History of a Concept (Zvi Ben-Dor Benite, Stefanos Geroulanos, and Nicole Jerr, eds., New York: Columbia University Press, forthcoming). Here is the abstract.

Theorists as diametrically opposed as Carl Schmitt and Immanuel Kant conceive of the pardon as an exception to the normal operation of law and associate that exception with the figure of the sovereign. This should not be surprising to those familiar with early modern political theory, which generally construed the pardon as one of the sovereign’s most significant powers. Those setting up the foundations for liberal constitutionalism, like Kant, failed to generate a new account of pardoning that would render it an important component of either the rule of law or democracy rather than a relic of monarchical sovereignty. Hence the pardon seems to fit more naturally into the anti-liberal Schmittian account of politics than into the contemporary U.S. constitutional order. As this essay contends, such a result was not inevitable; an alternative, non-sovereign conception of pardoning that appeared in early modern drama presented another possible basis for the act, one that was never implemented within politics. Kant associates pardoning with a particular kind of staging of the splendor of the king’s majesty, one trumped only by the horror of the spectacle of revolutionary and counter-revolutionary violence. This theatrical version of the pardon scene as affirming the height of the sovereign above the people — a version that manifests itself in the spectacular finales of early modern plays such as Shakespeare’s Measure for Measure — is countered by another kind of drama, in which forgiveness comes from a stranger or a friend, and is passed among citizens to reconstitute the state. The article concludes by analyzing an example of one such play, The Laws of Candy, and the path offered by its non-sovereign staging of pardoning.

Download the essay from SSRN at the link.

Kant On Morals and Law

Marcelo C. Galuppo, PUC Minas; Universidade Federal de Minas Gerais; University of Baltimore School of Law, has published How Law Replaced Morals – A Kantian Contribution. Here is the abstract.

Although most scholars try to conceive Immanuel Kant`s Theory of Law and his Moral Theory as belonging to a systematic point of view, there is a difficulty that challenges most of the interpreters: If there is a moral content that informs how positive Law should be enacted, why Kant says that civil disobedience and resistance to it cannot rationally be allowed? This apparent incongruence acquires another significance when one considers the functional and structural differences that Kant establishes between Law and Morals. If we take them seriously into account we will realize that Kant operates a radical separation between Morals and Law, which can no longer derives its content from Morals, but instead looks for an increasingly more political foundation in Modernity.

A New Book On Justice and Injustice

New from Routledge



The Concept of Injustice
By Eric Heinze
Published October 24th 2012 by Routledge--218 pages

The Concept of Injustice challenges traditional Western justice theory. Thinkers from Plato and Aristotle through to Kant, Hegel, Marx and Rawls have subordinated the idea of injustice to the idea of justice. Misled by the word’s etymology, political theorists have assumed injustice to be the sheer, logical opposite of justice. Heinze summons ancient and early modern texts, philosophical and literary, with special attention to Shakespeare, to argue that injustice is not primarily the negation, failure or absence of justice. It is the constant product of regimes and norms of justice. Justice is not always the cure for injustice, and is often its cause.

Pretty Little Philosophers?

Timothy Lukes has published The Politics of Beauty: Locke, Shaftesbury, and Burke as an APSA 2011 Annual Meeting Paper. Here is the abstract.

I argue that liberalism adulterates beauty, that Shaftesbury cannot resist the survival agenda of Locke, and that Burke's concept of the sublime is the result.

Download the paper from SSRN at the link.