Green on What the Declaration Didn't Do

Jonathan Green, University of Florida College of Law, is publishing What the Declaration Didn't Do in volume 101 of the Notre Dame Law Review. Here is the abstract.

What did the Declaration of Independence do? Today, the Declaration figures in our "constitutional memory" as the text that created the United States, and that set out the essential principles that define us as Americans. But when the Declaration first appeared, neither of those claims was self-evident. Whether the Declaration actually created thirteen "Free and Independent States" on July 4, 1776, turned on whether, before 1776, Britain's American colonies had their own constitutional rights against the Crown--that is, corporate rights that were conceptually severable from the rights of their English contemporaries. Because that question was essentially insoluble, the Declaration's legal effects weren't clear in 1776. By extension, whether there were an independent, self-directing American "People"--one that could corporately agree to a set of shared principles and announce them in the Declaration--wasn't clear either. Bringing the Declaration's initial indeterminacy back into view, I argue, illustrates how our memories of the past sometimes diverge from our history. We can choose to be ruled by myths, if we want. But we shouldn't fool ourselves into conflating the past we'd prefer with the one we actually have. 

Download the article from SSRN at the link.

Lerer on Law as Language: From Scandinavian Realism to Evolutionary Jurisprudence

Ignacio Adrian Lerer has published Law as Language: From Scandinavian Realism to Evolutionary Jurisprudence. Here is the abstract.

This paper traces the intellectual trajectory from early twentieth-century Scandinavian legal realism through contemporary analytical jurisprudence to propose an evolutionary theory of legal language. Building on the Scandinavian insight that legal concepts are linguistic phenomena rather than metaphysical entities, and extending the analytical tradition developed by Hart, Carrió, and the Alchourrón-Bulygin-Nino synthesis, I argue that legal systems exhibit evolutionary dynamics analogous to natural languages. Legal rules function as cultural replicators subject to variation, inheritance, and selection pressures operating through judicial interpretation, legislative modification, and administrative implementation. This framework provides theoretical foundation for understanding both the persistence of apparently dysfunctional legal institutions and the mechanisms through which legal systems adapt to changing environmental pressures. The paper concludes by proposing evolutionary jurisprudence as a research program that integrates insights from analytical philosophy of law with contemporary evolutionary approaches to cultural phenomena.

Download the paper from SSRN at the link.

Williams on the Jurisprudence of Sandwiches @sawilliams.bsky.social

Sam Williams, University of Idaho College of Law, has published The Jurisprudence of Sandwiches. Here is the abstract.

The question of what bread-based foods count as sandwiches is a contentious one that seemingly everyone has an opinion on. This includes many prominent legal minds, including prominent judge Richard Posner and Supreme Court Justices Scalia, Ginsburg, and Sotomayor. This question is not purely hypothetical to the law, as courts have had to determine the meaning of a sandwich in cases with thousands of dollars on the line. In this essay, I examine this budding sandwich jurisprudence and how it explains and exemplifies several unique features of legal thought, including the ongoing debate between legal formalism and legal realism, the reasonable person, and the breaking up of binary political identity into more nuanced portrayals of "liberal" and "conservative" justices. By biting in to this developing jurisprudence, I help to bridge the gap between the legal mind and the broader world of sandwich analysists.

Download the essay from SSRN at the link.

Webber on Gilead Constitutionalism @GregoireWebber @queensulaw @LSELaw

Grégoire Webber, Queen's University Faculty of Law; London School of Economics, Law School, has published Gilead Constitutionalism as Queen's University Legal Research Paper 2024-001. Here is the abstract.

This essay explores the concept of government by drawing on the liberal tradition of limited government. In that tradition, moral autonomy and independence are situated as the source of limits on government justified on other grounds. An alternative relationship between government and moral autonomy and independence is here examined, one according to which such autonomy and independence lie at the very heart of the justification for government rather than limiting its activity. The task of government is thus conceived as enabling moral autonomy and independence. One consequence of this way of understanding the justification for government is to deny that a government uncommitted to the liberal ideas of autonomy and independence counts as a government. Drawing on the example of Gilead in Margaret Atwood’s The Handmaid’s Tale, I explore how the claim of the officers of Gilead to be a government fails: in indiscriminately violating moral autonomy and independence, those officers are tyrants, oppressors, dictators, autocrats—but they are no government. This essay, to be included in a collection in celebration of Leslie Green, concludes by exploring how Green’s contributions to our understanding of government and governing were developed in conversation with one whose ideas on many matters were at a great distance from Green’s own. Green’s example of honourable engagement is a reminder of how progress in jurisprudence is facilitated by seeking the truth in charitable collaboration with others.

Download the article from SSRN at the link. NB: There are two versions of this article.

Bahnson and Shreve on Legal Treatises and the Evolution of Civil Rights Case Law @DukeLawLibrary @DukeLaw

Jane Bahnson and Wickliffe Shreve, both of Duke University School of Law, have published Legal Treatises and the Evolution of Civil Rights Case Law as Duke Law School Public Law & Legal Theory Series No. 2023-68. Here is the abstract.

During the 2022 term, the Supreme Court cited treatises to change legal precedent in two important civil rights cases. We examined the Supreme Court’s use of treatises in previous terms to reverse course on civil rights. Of 315 opinions identified, approximately half included treatise citations, more often by conservative-leaning Justices. This paper discusses the use of treatises by the Supreme Court to support its decisions in civil rights cases.

Download the article from SSRN at the link.

Tobia on Methodology and Innovation in Jurisprudence @kevin_tobia @kevintobia.bsky.social @GeorgetownLaw

Kevin Tobia, Georgetown University Law Center; Georgetown University Department of Philosophy, has published Methodology and Innovation in Jurisprudence at 123 Columbia Law Review 2483-2516 (2023). Here is the abstract.

Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which in turn elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law—in which “we” might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.

Download the article from SSRN at the link.

(Reviewing Dickson, Elucidating Law, OUP, 2022).

Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article from SSRN at the link.

ICYMI: Frohnen on Tocqueville's Law: Integrative Jurisprudence in the American Context

ICYMI: Bruce P. Frohnen, Ohio Northern University College of Law, published Tocqueville's Law: Integrative Jurisprudence in the American Context at 39 American Journal of Jurisprudence 241 (1994). Here is the abstract.

This article examines the jurisprudence of nineteenth century scholar and magistrate Alexis de Tocqueville. Best known for his analysis of American democratic society, Tocqueville brought to his work a lawyer’s eye for legal rules and structures, and their impact on public life. Tocqueville’s jurisprudence, integrating moral, political, and historical practices and influences, enabled him to explain the role of law and lawyers in maintaining stability in a society permeated by egalitarian and individualist impulses. Central to this stabilization, according to Tocqueville, were the legalistic norms inculcated through administrative decentralization and the jury system in a society that accorded high status to legal practitioners.

Download the article from SSRN at the link.

Carpentier and Spaak on Sources of Law in Continental Analytical Jurisprudence @CarpentierUT1

Mathieu Carpentier, Universite de Toulouse 1 Capitole, and Torben Spaak, Stockholm University, are publishing Sources of Law in Continental Analytical Jurisprudence in Jurisprudence in the Mirror (L. Burazin, M. S. Green, and G. Pino, eds., Oxford University Press) (forthcoming). Here is the abstract.

This chapter explores various aspects of the concept of "sources of law" in continental analytical jurisprudence. We chiefly pursue two distinct aims. First we try to provide a a reasonably comprehensive, albeit by no means exhaustive, overview of the way analytical legal philosophers in the civil law tradition have conceived the concept of sources of law and the problems thereto related. Secondly, we attempt to advance our own understanding of the concept of sources of law. In the first part, we distinguish between four possible concepts of sources of law: sources as facts, as norms, as authoritative texts and materials and as causal factors. We then explain why sources are best understood as law-creating facts, that is, as criteria of the validity of legal rules. In the second part, we try to show how the classic debates among jurists and lawyers concerning the various types of sources (legislation, precedent, custom) have been received by legal philosophers and to what extent a jurisprudential analysis of these debates could reveal some enduring confusions. On our analysis, the concept of a source of law remains a central concept of both doctrinal scholarship and legal practice in many countries on the Continent; as such, it captures both the fixity of the law’s points of origin – i.e. law-creating facts – and the fluidity of its outcome – i.e. the very content of the law thus created. This is why we can accept both that legal validity is fixed according to more or less determinate criteria picked out by a moderately open-textured rule of recognition, and that the precise content of the law is shaped by interpretive practices.

Download the essay from SSRN at the link.

Malloy on Law and the Invisible Hand: A Theory of Adam Smith's Jurisprudence (Draft Chapter 1) @SUCollegeofLaw

Robin Paul Malloy, Syracure University College of Law, has published Law and The Invisible Hand: A Theory of Adam Smith's Jurisprudence (Draft Chapter 1) (as part of Robin Paul Malloy, Law and the Invisible Hand: A Theory of Adam Smith's Jurisprudence (Cambridge University Press 2021). Here is the abstract.

Fundamentally, law is to society as gravity is to the solar system, it is the invisible force that holds it together and keeps it operating smoothly and productively. Law enhances social cooperation, facilitates trade, and extends the market. In these ways, law functions like Adams Smith’s invisible hand, guiding and facilitating the progress of humankind. This paper outlines the elements of understanding Smith's theory of jurisprudence, and introduces the theory developed in my book.

Download the draft from SSRN at the link.

Jeutner on Law's Image of the Human @ValentinJeutner

Valentin Jeutner, Lund University Faculty of Law, is publishing Law's Image of the Human in the Oxford Journal of Legal Studies (2020). Here is the abstract.

This is a translation of ‘Der Mensch im Recht’, Gustav Radbruch's inaugural lecture at the University of Heidelberg in November 1926, translated with an Introduction by Valentin Jeutner. Radbruch addresses the way in which law's image of the human informs the operation and content of law.

Download the translation of the lecture from SSRN at the link.

Wolitz on Alexander Bickel and the Demise of Legal Process Jurisprudence @UTKLaw

David Wolitz, University of Tennessee College of Law, is publishing Alexander Bickel and the Demise of Legal Process Jurisprudence in the Cornell Journal of Law and Public Policy. Here is the abstract.

This article provides an intellectual history of the displacement of Legal Process theory as the predominant jurisprudential approach in American law. The Legal Process approach to law embedded a strict norm of principled adjudication within a larger pragmatic theory of law. Alexander Bickel understood that the Legal Process theory of adjudication clashed with its commitment to pragmatic governance. The country, Bickel believed, could tolerate only so much principled decisionmaking — “No good society can be unprincipled, and no viable society can be principle-ridden.” Bickel convinced himself that the judiciary could promote pragmatic governance while maintaining its own integrity as an institution of principle through the implementation of various justiciability and abstention doctrines, the so-called “passive virtues.” Prudent invocation of the passive virtues, Bickel argued, would keep the core judicial function — rendering decisions on the merits — free from merely expedient considerations while granting the political branches the space and time they need to work out pragmatic compromises. But once Bickel starkly drew out the tension between principled decisionmaking and pragmatic governance, the Legal Process consensus began to fracture. Why allow for unprincipled judicial decisionmaking with respect to certain justiciability and abstention questions, but not in other areas of doctrine? As Gerald Gunther put it, Bickel was effectively advocating “100% principle, 80% of the time.” Bickel’s passive virtues solution found no favor among his Legal Process peers and drew even greater criticism from Warren Court-defending legal liberals. Bickel’s penetrating insights into the tensions between principled decisionmaking and pragmatic governance had exposed an always latent divide in Legal Process thought, one Bickel himself could not successfully reconcile. After Bickel, normative jurisprudence has become ever more polarized between consequentialist-pragmatic approaches on the one hand and principled-rationalist approaches on the other.

Download the article from SSRN at the link.

Likhovski on A Colonial Legal Laboratory? Jurisprudential Innovation in the British Empire

Assaf Likhovski, Tel Aviv University, Buchmann Faculty of Law, is publishing A Colonial Legal Laboratory? Jurisprudential Innovation in the British Empire in the American Journal of Comparative Law. Here is the abstract.

In this article, I examine jurisprudence textbooks and related works written in the British Empire in the late-19th and early-20th centuries, focusing mostly on British India, but also discussing Mandatory Palestine and British-ruled Egypt. Some of the jurisprudential works from the British Empire were merely summaries of the leading English books. However, there were also more original works, characterized by several unique features. First, some of the works produced in the Empire were more influenced by Continental and American legal theories than the equivalent English textbooks (for example, by early-20th-century French and American sociological approaches to law). Second, the need to mention non-English legal systems in these works sometimes led their authors to question key English notions about the nature and development of law (critiquing, for example, Henry Maine’s description of Hindu law). Finally, some nationalist local legal scholars also created a unique genre of jurisprudential works: texts that used western jurisprudential theories to describe the main features of non-western legal systems, such as Hindu, Jewish and Islamic law. These unique aspects of colonial jurisprudential works illustrate a broader phenomenon: the fact that legal scholars in imperial peripheries were not always simply passive receivers of ideas produced at the center of empires, but in some cases created works containing interesting jurisprudential insights. The notion that the British Empire was a “legal laboratory” in which legal scholars experimented with new ideas has already been discussed in the literature, largely based on examples taken from the fields of legislation (the codification of English law in 19th-century India), or forensic science. This article explores the extent to which the British Empire was also a site of jurisprudential innovation.

Download the article from SSRN at the link.

Donelson on Describing Law @LSULawCenter

Raff Donelson, Louisiana State University (Baton Rouge), is publishing Describing Law in volume 33 of the Canadian Journal of Law and Jurisprudence (2020). Here is the abstract.

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as claims that must be assessed on the basis of practical reasons (pragmatism). Ultimately, this paper argues that we should understand these claims in the pragmatist way; as such, jurisprudential claims are about what to do, e.g., what to treat as law and how to order society.

Download the article from SSRN at the link.

Newly Published: Jonathan Crowe, Natural Law and the Nature of Law (Cambridge UP, 2019) @CambridgeCore @CambridgeUP

Jonathan Crowe, Bond University School of Law, has published Natural Law and the Nature of Law (Cambridge University Press, 2019). Here is the abstract.

This book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis's influential Natural Law and Natural Rights. Incorporating insights from recent work in ethical, legal and social theory, it presents a robust and original account of the natural law tradition, challenging common perceptions of natural law as a set of timeless standards imposed on humans from above. Natural law, Jonathan Crowe argues, is objective and normative, but nonetheless historically extended, socially embodied and dependent on contingent facts about human nature. It reflects the ongoing human quest to work out how best to live flourishing lives, given the natures we have and the social environments we inhabit. The nature and purpose of law can only be adequately understood within this wider context of value. Timely, wide-ranging and clearly written, this volume will appeal to those working in law, philosophy and religious studies.

 

Call For Papers, 4IR: Philosophical, Ethical, Legal Dimensions, September 3-5, 2019

Call for Papers

4IR: Philosophical, Ethical, Legal Dimensions

The conference aims to bring together scholars from a range of disciplines to discuss the philosophical, ethical, and legal questions raised by the onset of the so-called ‘Fourth Industrial Revolution’ and its emerging technologies. In some cases, the questions are long standing and recent technologies are leading to a novel reconsideration of them. In other cases, seemingly new questions are arising – questions that range from the ethical and legal to the epistemological and foundational.

Dates Location Deadline for Abstracts Notification Organisers

3–5 September 2019 University of the Witwatersrand, Johannesburg, South Africa 15 June 2019 (extended deadline) 30 June 2019 Helen Robertson (Wits), Turgay Celik (NEPTTP, Wits), Rod Alence (Wits), Casey Sparkes (NEPTTP), Anwar Vahed (DIRISA)

Submissions are invited on the philosophical, ethical, and legal dimensions of, among others,

Algorithmic Automation Artificial Intelligence Artificial Life Big Data Cyber Warfare Data Mining Deep Learning

Hypercomputation Machine Learning Open Data Personal Data Simulation and Virtual Reality Social Media

Submission of abstracts is via Easychair at https://easychair.org/conferences/?conf=4irphel. Short (180-200 word) and extended (800-1000 word) abstracts should be prepared for blind review and submitted by 15 June 2019.

Submissions from the following disciplines are especially encouraged. Applied Ethics Epistemology Philosophy of Mind Philosophy of Information Philosophy of Computation Data Protection Law

Interdisciplinary submissions from the following disciplines are equally encouraged. Data Science Cognitive Science Computer Science Mathematics Logic Robotics

The keynote address will be given by Brent Mittelstadt, Oxford Internet Institute, University of Oxford.

Publication of selected papers in a conference special issue is planned for 2020. Further details will be announced.

Queries regarding abstract submission or the conference more generally can be directed to Helen Robertson at <helen.robertson@wits.ac.za>  or via the conference website at https://easychair.org/smart-program/4IRPhEL/about.html.

The conference is funded by the National e-Science Postgraduate Teaching and Training Platform (NEPTTP) and the Data Intensive Research Initiative of South Africa (DIRISA).

Adeyemi on Modern Trends in Legal Thoughts: A Jurisprudential Outline

Babatunde Ajani Adeyemi, Babcock University, has published Modern Trends in Legal Thoughts: A Jurisprudential Outline. Here is the abstract.

The subject matter of this paper – Modern Trends in Legal Thoughts – connotes new thinking in Legal theory. Themes like; the current trends in analytical and normative jurisprudence, theories of justice, critical legal studies movement, feminist jurisprudence, critical race theory, and post-modernist jurisprudence, among others, constitute strands of the ‘new’ jurisprudential thoughts to be examined in this paper. ‘New’ in this context does not mean ‘novel’, because every product of law in the real sense, may be no more than the product of its time and place. This point is further illustrated by the comments of Freeman, M.D.A, that ‘contemporary thinking and contemporary questions have often rekindled interest in, and thrown new lights upon classical writers. It is the intention of this writer to approach the subject as a genealogical exercise, with the hope that at the end of the paper, a modest attempt to build a kind of bridge between theory and practice of law, would at least have been discernible.

Download the article from SSRN at the link.

Rutherglen on Reconstruction in Legal Theory

George A. Rutherglen, University of Virginia School of Law, has published Reconstruction in Legal Theory as Virginia Public Law and Legal Theory Research Paper No. 2019-20. Here is the abstract.

Reconstruction and the Civil Rights Era did not make a significant appearance in legal theory until the eve of Brown v. Board of Education. The reconstruction accomplished by legal theory was internal to legal theory itself, as it was in philosophy as a whole. Methods of judicial review and processes of legal reasoning came in for criticism and revision, just as the aims and methods of philosophy did so. Legal theory took a turn towards legal positivism and legal realism, neither of which had much patience with the normative claims underlying civil rights. Nor did philosophy as it fell under the influence of logical positivism and its skepticism of normative claims generally. This essay describes this historical pattern, in which the neglect of civil rights in legal theory paralleled the neglect in constitutional law, only to be suddenly transformed by Brown v. Board of Education. Civil rights went from the status of a neglected stepchild in legal theory to the heir apparent of judicial review. Legal theories could no longer ignore principles of racial equality but instead had to take them as axiomatic.

Download the article from SSRN at the link.

Calnan on Law's Coevolution.@SouthwesternLaw

Alan Calnan, Southwestern Law School, has published Law's Coevolution. Here is the abstract.

One of most pervasive maxims of American jurisprudence is that law evolves. Applied metaphorically, it expresses the broad idea that law gradually adapts to its environment, unfolding in a linear and progressive trajectory controlled by either human reason or social influence. But science now discredits these assumptions. Law does not just evolve philosophically; it coevolves with everything in nature. Recent breakthroughs in the natural sciences show that humans are born with an instinct for legality. According to the social and systems sciences, this neurobiological faculty extended outward into the social world, initially inspiring a collection of proto-legal mechanisms like prosocial impulses, social norm circles, and peer punishments. Eventually, these social mechanisms culminated in complex legal networks that were prominent, permanent, autonomous, and preeminent. Once entrenched, these “jurisystems” have triggered a number of downward effects, coordinating human conflicts, relieving social stress, and reinforcing social bonds. As law’s influence grows, it continuously shapes social behavior and cultural memory, completing a cycle of epigenetics and gene-culture coevolution that renews our sense of legality. In sum, law coevolves with our genes, brains, societies, and cultures in a loopy, coordinative, information exchange that promotes stability and survival.

Download the article from SSRN at the link.

Dane on Robert Cover and Legal Pluralism @perrydane

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

This short talk focuses on three aspects of Robert Cover's brand of legal pluralism: First, Cover's account of legal pluralism went beyond the simple recognition of non-state legal orders; just as important for him was the claim that non-state communities could generate and defend distinct readings of the state's own legal order. Second, Cover's jurisprudence assigned a central role to state violence and non-state communities' resistance. Violence and resistance were vital to his account not only because they are the way of the world but because they help render legal pluralism real. Third, Cover's well-known focus on the narrative dimension of the law was intertwined with his famous image of the law as a bridge between the present world and the ideal. Both the real and the ideal are narratives – stories – and that law is, in a sense, the feat of engineering that connects these two separated narratives.

Download the essay from SSRN at the link.