Bonica and Klein on Adam Smith on Reputation, Commutative Justice, and Defamation Laws @mbonica @GeorgeMasonU

Mark Bonica, University of New Hampshire, Health Management and Policy, and Daniel B. Klein, Department of Economics, have published Adam Smith on Reputation, Commutative Justice, and Defamation Laws as GMU Working Paper in Economics No. 19-24. Here is the abstract.

We explore two issues in reading Smith. The first concerns whether he thought that “one’s own” as covered by commutative justice included one’s reputation. Several passages point to the affirmative. But reputation is left out of Smith’s “most sacred laws” description of commutative justice. Moreover, so much of reputation—e.g., “Steve’s work stinks”—does not fit Smith’s description of commutative justice’s rules (precise and accurate). Our reading makes use of older terminology from Pufendorf, Carmichael, and Hutcheson distinguishing “simple” and “intensive” esteem, and suggests that the “reputation” that sometimes appears is of a simple variety (“Steve steals horses”) that potentially incites invasion of commutative justice’s three staples—person, property, promises due. On that reading the “reputation” that comes under commutative justice would be adjunctive to the three staples. Our reading also recruits Hume, who nowhere even hinted at reputation being a constituent of commutative justice. The second matter explored is Smith’s policy inclination about defamation laws (libel, slander) as they would pertain to intensive esteem. By our lights, were Smith to favor intensive-reputation defamation laws (against, say, “Steve’s work stinks”), we would have to count that as another exception made to the liberty principle. Smith’s remarks are mixed, but we think he was rather inclined against aggressive or extensive laws of such kind. (Also, we draw a parallel to patent and copyright.) Looming behind our discussion is the question: Why did Smith leave us with contrarieties and unclarity? We figure that if Smith thought that wantonly telling malicious lies like “Steve’s work stinks” was not a violation of commutative justice and, moreover, is best left perfectly legal, those are judgments that the liberal project’s great prophet would hardly want to make plain, because indifferent readers would misunderstand them and adversaries would misrepresent them.

Download the paper from SSRN at the link.

Santamaria on Foucault and Modern Law: A Review

Gerardo del Cerro Santamaria has published Foucault and Modern Law: A Review at 26 Foucault Studies 111 (June 2019). Here is the abstract.

Professor Jacopo Martire’s book, A Foucauldian Interpretation of Modern Law. From Sovereignty to Normalisation and Beyond deserves careful attention. The book represents the author’s project of making Foucault’s thought compatible with modern legal theory. Dr. Martire (from the University of Bristol) tries to put together and reconcile two seemingly incompatible approaches to understanding the workings of modern society. Jürgen Habermas’s forceful critique of Foucault still looms large. Other traditional interpretations of Foucault’s work have emphasized “the expulsion thesis,” that is, the fact that Foucault, relying too much on discipline and governmentality, effectively expelled law from the locus of power and excessively downplayed the role of law in our times.

Download the article from SSRN at the link.

Donelson on Oliver Wendell Holmes as Nihilist @LSULawCenter

Raff Donelson, Louisiana State University, has published The Nihilist at The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. 31-48 (Seth Vannatta, ed. Lexington Press 2019). Here is the abstract.

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

Download the essay from SSRN at the link.

Neto on the (dis)Similar Properties of Legal and Moral Duties in Law and Morals: Proceedings of the Special Workshop Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy (2017)

Joao Andrade Neto, Universität Hamburg; Albrecht Mendelssohn Bartholdy Graduate School of Law; Pontifical Catholic University of Minas Gerais, is publishing On the (dis)Similar Properties of Legal and Moral Duties in Paula, André Ferreira Leite de; Santacoloma Santacoloma, Andrés (eds.). Law and Morals: Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017. Stuttgart: Franz Steiner Verlag, 2019.

Do legal and moral duties share exactly the same properties? Moral philosophers such as Hare, Searle, and W. D. Ross believe that moral conflicts exist in which an individual has equally good reasons to fulfil two or more obligations that cannot be simultaneously satisfied. In such cases, they say, one has “reasons other things being equal” to act one way or another. These so-called “prima-facie duties” contrast with “definitive” moral duties, which remain after all reasons were considered. Some legal philosophers affirm that this separation applies to legal duties, as well. Alexy employs the same classification to differentiate two types of constitutional norms: principles and rules. As the differentiation originally had a philosophical scope, it is relevant to ask whether the separation between prima facie and definitive moral duties can ground a similar differentiation between types of legal norms. This essay addresses this question. Rather than denying the difference between “prima facie” and “definitive” moral duties, it asks whether prima facie legal duties actually exist. The aim is to demonstrate that, from the internal perspective, a possible consequence of legal differentiation and institutionalization is that only definitive duties are to be regarded as law.

Download the essay from SSRN at the link. 

Eugene Garver on Spinoza and the Cunning of Imagination (University of Chicago Press, 2018)

ICYMI: Eugene Garver, Spinoza and the Cunning of Imagination (University of Chicago Press, 2018). Here from the publisher's website is a description of the book's contents.

Spinoza’s Ethics, and its project of proving ethical truths through the geometric method, have attracted and challenged readers for more than three hundred years. In Spinoza and the Cunning of Imagination, Eugene Garver uses the imagination as a guiding thread to this work. Other readers have looked at the imagination to account for Spinoza’s understanding of politics and religion, but this is the first inquiry to see it as central to the Ethics as a whole—imagination as a quality to be cultivated, and not simply overcome. ​Spinoza initially presents imagination as an inadequate and confused way of thinking, always inferior to ideas that adequately represent things as they are. It would seem to follow that one ought to purge the mind of imaginative ideas and replace them with rational ideas as soon as possible, but as Garver shows, the Ethics don’t allow for this ultimate ethical act until one has cultivated a powerful imagination. This is, for Garver, “the cunning of imagination.” The simple plot of progress becomes, because of the imagination, a complex journey full of reversals and discoveries. For Garver, the “cunning” of the imagination resides in our ability to use imagination to rise above it.

 

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.

CFP: Noesis: The Philosophy of Customary Law

Reminder: the journal Noesis has issued a CFP for its Spring 2020 issue, The Philosophy of Customary Law. The deadline is June 1st, 2019. You may submit papers in English, French, or Italian. The editors are Luke Mason, Eduardo Frezet, and Marc Goetzmann.

Call for Papers: The Philosophy of Customary Law 

Special edition of the French journal Noesis

Presentation

For more than 20 years, the peer-reviewed journal Noesis has been at the forefront of French contemporary philosophy. Affiliated to the Center for Research in the History of Ideas (CRHI) of the University of Nice Sophia Antipolis, Noesis publishes two special editions a year, collecting papers around a topic chosen by its scientific committee. The Philosophy of Customary Law will be the name of the Spring 2020 double issue. It follows the organization of a conference on the “Philosophy of Customary Law” in May 2018.

The call

Far from considering the phrase "customary law" as a self-evident truth, papers will aim at identifying and trying to solve the many tensions created by the juxtaposition of two separate but parallel forms of social regulation: law and custom. What matters then is to investigate the ambiguity behind the very idea of customary law. Does it point out one more sort of law, or does it designate an autonomous kind of law, with its own features and not reducible to the law?

Answering these questions requires without any doubts an inquiry about the peculiar dynamics of customary law, grounded on both empiricist and theoretical perspectives. To know whether it is a form among others of law or it is specific enough to be called a genus of law, it is crucial to define its principles. If this law is called customary it is because custom is key to it as a source of law. Understanding the specific features of customary law means therefore striving to understand what role custom plays to shape the very nature of customary law.

It will be necessary to investigate the way the main role assigned to customs determines the very existence of specific institutions and peculiar criteria of the bigger law frame that regulates the individual. Any legal system that includes custom as its element must establish spatial, temporal and logical frame of custom proofs. Nevertheless, Anglo-Saxon Common law and its peculiar principles mustn't overshadow any attempt to grasp the principles and the peculiarities of customary law; and we will be particularly sensitive to the way the customary law settles in pluralist contexts, where different customary laws can be concurrent. In these conditions the interaction between law and custom takes the shape of a normative conflict more than of a coherent customary law.

Exploring the limits and the fictions of customary procedures adopted by the Common Law could be the first step of both a new deployment of the customary law potential and an inquiry about its foundations. Indeed, it would be of extreme interest to study the different forms of customary law in eras where the Common Law model is spreading at different levels and domains, especially in international law, and where customary law is adopted in de-colonized regions where the law system is marked by a strong plurality of contexts.

Peculiar stakes of these contexts force to investigate both the limits and the flexibility of customary law. Do evolutions of scales and domains concern the essence of customary law, if this nature exists? Or are they only variations of a single nature beyond the peculiarities of each embodiment?  It will also be necessary - among other issues - to address the specific effectiveness of customarylaw, and to determine if it lays on the same constraint as the law; and if it is supported by peculiar institutions and applications. The question of the role of the sanction is in this respect essential.

In the wake of these reflections it is necessary to note that custom is reduced to the status of simple source of the law in every lawcalled customary, and is therefore deprived of every autonomous form of normative power. It is not custom that is not acknowledged as custom according to the processes required and in the name of the institutions and criteria defined by law. In this case, custom is not anything more than one of the many possible sources of law, and concurring with them; it has not a primary juridical existence.

This is the reason why John Austin could so easily disqualify custom self-sufficiency, arguing - with Hobbes and against the historical school - that the very nature of law prevents custom to be effective on its own besides the implicit or explicit, direct or indirect acknowledgement by the sovereign. One of the main ambitions of this collective publication would be indeed to question Austin's position. This could in turn allow to address the issue of the substantial or accessory priority of the phrase "customary law". Beyond this lies the very issue of the autonomy of custom as a social regulation tool.

In order to do that, one could be tempted to consider what disappears of custom and what does not, in customary law, so as to really understand its very nature. This brings us to discuss the specific subject of the codification of custom, the cornerstone of customary law. This codification is never de facto a neutral act, and it will be more relevant to point out from every point of view all the implicit tensions of the codification, which standardize and stabilize power balances or social and economic struggles. One of the axes of the study, already well known in social science but overlooked by philosophy, would be that of interaction between formal lawand custom in de-colonized countries.

Legal codification is one of these moments when powers and knowledge meet with most intensity. The “historical school” of lawmaintained the necessity of combining law studies with humanities, and we can now include social sciences such as economy, anthropology and sociology. We will therefore investigate which place these disciplines can or should have within the codification and definition of custom; we will also inquiry about their legitimacy, methods and approaches. 

The question arises of which place one should give to specific case studies in this volume. It is clear that they must be crucial while studying customary law as a theoretical object; but no discourse should be limited to a series of descriptions of different customarylaws.

The following, non-exhaustive, list of questions should allow to prefigure various leads:

Does "customary law" locution show a specific mode of social regulation between the juridical and the customary? Is custom a source of law? Or could be considered as an object beyond or before it? Does a specific form of customary law exist despite its different expressions? Does a model of customary law exist - such as the international law?

Which transformations does custom endure when integrated with the "customary law"? Which philosophical implications does codification of custom produce within customary law? Which are the stakes of the very existence of customary law in pluralist and decolonized contexts? What are the relationships between customary law on one side and moral or juridical standards such as human rights on the other? What is the place of customary law within social change dynamics?

Which interactions and which concerns exist about humanities, social sciences and law with respect to custom? Which are the links of customary law with localities, territories, their history and their social displaying? How different disciplines of social and human sciences allow to reflect upon these phenomena and their conflict with law's peculiar formality?

Submissions

The committee and the editors will make their selection from a set of complete papers only. Proposals will not be reviewed.

Papers may be as long as 35.000 signs / 7.500 words. This does not include: the main title, abstracts, footnotes, the author’s presentation etc. Only the main text counts in the total of words.

Papers may be written in French, English and Italian only. They should be sent to the following email addresses altogether, by June 1st, 2019.

noesis@listes.unice.fr

edoardo.frezet@gmail.com

marc.goetzmann@unice.fr

luke.mason@bcu.ac.uk

To ensure an unbiased selection, the document must be anonymous. It must be modifiable, therefore .doc files are preferable. Please include in your email a separate document that states your name, affiliation, topics of interests. We should provide an answer by August 1st, 2019. 

Then, selected papers might need some modifications. The final versions of the papers will be due by September 15, 2019.  

Guidelines for submissions to Noesis

The paper must include:

-a title

-a short abstract (300 words approx.) with a list of 5 keywords

-images can be inserted in the file but need to be sent separately as well

Once the paper is published, the author also accepts the future publication of his/her paper online.

Formatting standards:

-Times New Roman, 12, with no extra space between lines, is preferable

-The titles of all the parts and sub-parts of the paper must be clearly highlighted and numbered

-Each paragraph must be indented

-Notes must be footnotes and not end notes, numbered from 1 to the end.

-Commas like this « » are preferable to commas like this “”

-Quotes that are longer than 3 lines approx. must be separated from the main text

-Quotes in foreign languages must be italicized

-Cuts inside quotes must be signaled with […]

-To highlight words, please use commas first, italics if necessary, but do not underline or put the words in bold

References:

-References must be included in footnotes. Lists of references at the end of the article are possible but not encouraged.  

-The main text must not include bibliographical elements (like dates): the full reference must appear in the footnote and only there. Only the number of the footnote appears in the main text.

For books:

Author’s first name and last name (in full), Title, City, Publisher, year, p. x.

For papers:

Author’s first and last name (in full), « Title », Name of publication, n° X, Year, p. x.

For book chapters:

Author’s first and last name, « Title », in first letter of the editors’ first name and editor’s last name, (ed.), Title, City, Publisher, Year, p. x.

-Authors’ names should not written completely with upper-case letters

-They should be written in full

-If there are 2 authors, use “and” between the two names; for 3 authors, separate the first two with a comma and use “and” before the last name; for more than 3 authors, use et al.

For recurring references inside footnotes:

For a book: Author’s first and last name, Title (shortened if necessary), op. cit., p. x.

For a paper: Author’s first and last name, « Title », art. cit., p. x.

If the reference is repeated right after a previous mention: use Ibid., p. x, if the page is different; for the exact same page, Ibid. only.

Please use:

chap. for chapters

n° for a specific issue

p. for page(s)

sq. pour “and the following pages”

t. (number) to indicate the book part

trad. for translation/translator

--

Marc Goetzmann

Part-time Lecturer, University Paris 1 Panthéon-Sorbonne, Philosophy Department

PhD-Candidate, University of Nice Sophia Antipolis, UCA

Editor-in-chief for http://www.implications-philosophiques.org

ATER Université Paris 1 Panthéon Sorbonne UFR10

Agrégé de philosophie

Doctorant, Université de Nice Sophia Antipolis, membre de l'Université Côté d'Azur

Rédacteur en chef pour http://www.implications-philosophiques.org

Heinze on An Anti-Liberal Defense of Free Speech @Eric_Heinze

Eric Heinze, Queen Mary University of London, School of Law, is publishing An Anti-Liberal Defense of Free Speech: Foundations of Democracy in the Western Philosophical Canon in the Oxford Handbook of Law and Humanities (forthcoming). Here is the abstract.

Western democracies have determined the extent and limits of free expression largely within rights-based frameworks. As captured by Mill’s classically liberal “harm principle”, expression is permitted except insofar as legislatures and courts deem it to cause some unacceptable harm. Through a review of certain texts foundational for democracy, however, we can identify principles different from the standard liberal principles. Beginning in ancient Athens, we discover that questions of legal legitimacy invariably become questions of civic participation; and civic participation is nothing if not expression. It is no exaggeration to suggest that Western political philosophy altogether begins with that observation: Plato’s Crito presents the West’s first systematic enquiry into the question of legal legitimacy – that is, the question of when the law can bind us through moral rightness, beyond sheer physical coercion. The law binds us precisely to the extent of the freedom we have enjoyed to disagree with it.

Download the essay from SSRN at the link.

Nunn on Legal Theory and the Morality of Conscious Racial Identity @UFLaw @NebLRev

Kenneth B. Nunn, University of Florida College of Law, has published 'Essentially Black': Legal Theory and the Morality of Conscious Racial Identity 97 Nebraska Law Review 287 (2018). Here is the abstract.

In philosophy, essentialism involves the claim that everything that exists has a fundamental character or core set of features that makes it what it is. Although this idea developed out of Platonic notions of ideal forms, it has spread beyond philosophy into the social sciences and hard scientific disciplines like mathematics and biology. Since the advent of postmodernism, discussions around essentialism have become controversial. Adherents of postmodern theory argue that social categories, such as gender, race, and sexuality are socially constructed and that essentialist notions of identity, which suggest that identity is static, natural, and unchanging, are theoretically wrong. This postmodern perspective has engendered a significant and often contentious debate on the value of essentialist thought in contemporary identity movements focused on gender, sexuality, and race. In the context of these debates, essentialism has taken on a pejorative character and a negative moral connotation, especially among progressives and left-leaning social activists. The consequences of this moral condemnation are far-reaching. It makes it difficult for identity groups to organize around any social category deemed to be essentialist. This morally-grounded prohibition is especially problematic for Black nationalists and African-centered activists. In this Article, I examine the anti-essentialism critique that has developed in Critical Race and LatCrit legal theory. I argue that the anti-essentialism critique offered by critical theorists is misguided insofar as it claims that the assertion of a conscious racial identity is morally wrong. In reaching this conclusion, I first point out some contradictions and failings in the reasoning underlying the critique. Next, I detail some of the difficulties that adherence to anti-essentialism creates for Black communities and activists. Finally, I link normative approaches to essentialism to culture and worldview. I argue that antiessentialism is Eurocentric and its claim to a universal moral prohibition against race-consciousness is false.

Download the article from SSRN at the link.

Call For Contributions for an Issue of Noesis: The Philosophy of Customary Law

Call for contributions: The Philosophy of Customary Law for an issue of the journal Noesis. More at the link here. 

Donelson and Hannikainen on Fuller and the Folk: The Inner Morality of Law Revisited @LSULawCenter

Raff Donelson, LSU A&M and LSU Law Center, and Ivar Hannikainen, University of Sheffield, Department of Philosophy, and Pontifical Catholic University of Rio de Janeiro, are publishing Fuller and the Folk: The Inner Morality of Law Revisited in 3 Oxford Studies in Experimental Philosophy (T. Lombrozo and S. Nichols, eds, Oxford University Press, forthcoming). Here is the abstract.

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we should be skeptical of Fuller's inner morality of law in light of the experimental data.

Download the essay from SSRN at the link.

CFP: Special Workshop at the "Dignity, Diversity, Democracy" Conference of the International Association for the Philosophy of Law and Social Philosophy, Lucerne, Switzerland, July 7-13, 2019

CFP for Special Workshop at the "Dignity, Diversity, Democracy" Conference (Annual Congress of the International Association for the Philosophy of Law and Social Philosophy) Lucerne, Switzerland, July 7-13, 2019 (at the University of Lucerne)

Special Workshop 48: Immigration & Nationalism: Finding Common Ground Between Narrative Extremes

Convenors: Andrew Majeske, Gilad Ben-Nun

Workshop Description: 

In the United States the contentious midterm elections of 2018 will occur shortly. The narratives dominating the public conversation in respect to immigration (currently in the news is the migrant caravan of Honduran refugees, and the move to restrict birth-right citizenship) and nationalism (“make American great again”, and “America first”) by all appearances are controlled respectively by the far right and the far left of the political spectrum. Certain it is that these more extreme narratives garner the bulk of mainstream media attention, and offer the least opportunity for identifying a common ground upon which productive public discussion can work to counter the fear-mongering and demonizing that constitute the core of these narratives. A similar dynamic has been playing out in many if not most of the nations that constitute the EU. 

It is the hope of the conveners that the papers that will be shared in this special workshop will work towards addressing , from the interdisciplinary standpoint of law, literature & culture, the problem of the missing middle, and to identify ways in which a different narrative can be structured that can either bridge the extremes of the political left and right, or if that is not feasible, to work towards creating a new narrative (or resurrecting an older one). This new or restored narrative must be one that creates a broad and stable middle ground, a middle-ground that highlights the core values of dignity, democracy & diversity, and the principles that support these values—namely, that the only legitimate government is one based on the consent of those governed, and its necessary analogue, that there is at the least a fundamental initial political equality of all persons. Whether this new or restored narrative will be of sufficient power and vitality to push the extreme narratives back to their native ground, the margins, is uncertain; but it is the position of the conveners that we have a duty to try. 

The conveners are therefore hopeful that given the myriad of perspectives and approaches that characterize the interdiscipline of law, literature & culture, that the workshop will be productive in identifying such new or restored narratives with which we can begin to confront what is presenting itself as the fundamental crisis of our times.  We trust that the urgency of establishing a trans-Atlantic (and hopefully even broader) dialogue on this theme is evident to all.

The special workshop will be held in English. 

If you are interested in presenting a paper in this workshop, please send a short abstract (max. 300 words) to the workshop conveners by January 31, 2019. Decisions will be made by February 28, 2019. Full papers will be circulated among the workshop participants approximately two weeks before the start of the conference. 

Conveners: 

Andrew Majeske (John Jay College of Criminal Justice (CUNY), New York)

            ajmajeske@gmail.com

Bilad Ben-Nun (University of Leipzig)

            gilad.ben-nun@uni-leipzig.de

ICYMI: Davison-Vecchione on How the EU Is Like the Marvel Universe @dejdavisonvec

ICYMI: Daniel Davison-Vecchione, Department of Sociology, University of Cambridge, has published How is the EU like the Marvel Universe? Legal Experientialism and Law as a Shared Universe at 30 Law and Literature 185 (2017). Here is the abstract.

This article considers the ontological and epistemological questions about European Union (EU) law raised by the phenomenon known as constitutional pluralism, and the challenge this presents to theories of law based on the concept of a legal system. It does so by heuristically comparing the EU legal order and the “Marvel Universe” of Marvel Comics, as both an extension and critique of Ronald Dworkin's analogy between interpreting law and writing a chain novel. The article explicates the concept of a “storyworld” in narrative theory and discusses the Marvel Universe's significance in this respect. It then outlines the similarities between EU law and the Marvel Universe, using the concept of a storyworld to build and apply a theoretical framework that can move beyond orthodox views of constitutional pluralism. Lastly, the article uses these insights to begin laying the groundwork for a new theory of law termed “legal experientialism,” which understands law as an irreducible world that is both experienced and constructed through our collective interpretive practices.

Greenhouse on Reading Durkheim in Darkness

Carol Greenhouse, Princeton University, has published Reading Durkheim in Darkness at 45 Journal of Law and Society 664 (2018). Here is the abstract.

This article is a contribution to the occasional series dealing with major books that have influenced the authors. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, André‐Jean Arnaud, Alan Hunt, Michael Adler, Lawrence O. Gostin, John P. Heinz, Roger Brownsword, Roger Cotterrell, and Nicola Lacey. I have chosen Émile Durkheim's Division of Labor in Society (1893). As for many social scientists, Division was part of my introduction to anthropology, especially for its key concepts of collective consciousness and social solidarity. A standard reading of it formulates Durkheim's idea of law as the expression of collective consciousness; however, later circumstances of rereading gave me a sense of his own doubts on this very possibility. As my ethnographic work has increasingly focused on the strategic aggrandizement of federal power in the United States, I have been surprised to find myself repeatedly reaching for Durkheim's book – particularly for its association of the value of social science with the vulnerability of modern society to democratic crisis.

The full text is not available from SSRN.

Nielsen and Hartz on The Problem of Motivation in Hegel and Rawls

Carsten Fogh Nielsen, University of Aarhus, Department of Education, and Emily Hartz, Copenhagen Business School, Department of Organization, have published Why Be Just? The Problem of Motivation in Hegel and Rawls at 31 Ratio Juris 326 (2018). Here is the abstract.

At the heart of any theoretical problem of justice lies the problem of motivation: Even if we could conceive of a way to develop a comprehensive system of just laws, and even if we could rationally believe in the justice of these laws, how could we ever ensure that we—or anyone else—would be motivated to abide by them? By unearthing how the problem of motivation sways canonical discussions of justice, the article brings forth intrinsic similarities and differences in these discussions that are often overlooked in the literature. In particular, the article highlights intrinsic similarities in the analysis of the concept of justice in two central works that belong to the continental and the analytic tradition respectively and are otherwise rarely discussed together: Hegel’s Outlines of the Philosophy of Right and Rawls’s Theory of Justice.

The full text is not available from SSRN.

Halberstam on the History and Philosophy of Federalism(s) in the United States and Europe @UMichLaw

Daniel Halberstam, University of Michigan Law School, has published 'A People for Certain Purposes': On the History and Philosophy of Federalism(s) in the United States and Europe as U of Michigan Public Law Research Paper No. 619. Here is the abstract.

This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

Download the article from SSRN at the link.

CFP for Salzburg Workshop in Legal and Social Philosophy 2018: Deadline July 25, 2018 @KYAlbrecht

CFP Deadline approaching: July 25, 2018: Salzburg Workshop in Legal and Social Philosophy 2018.

SALZBURG WORKSHOP IN LEGAL AND SOCIAL PHILOSOPHY 2018

Legal and social philosophy benefits from the often novel approaches of young scholars—and young scholars need the opportunity to discuss their work with peers as well as with more senior scholars. It is the aim of the “Salzburg Workshop in Legal and Social Philosophy” to facilitate this exchange of ideas in an international setting. These one-day workshops will provide a stimulating and encouraging environment to discuss contemporary issues within the field of legal and social philosophy, which includes theories of jurisprudence, concepts of law and justice, theories of constitutional law and theories of international institutions. Every workshop focusses on a topical issue that is challenging and interesting from the point of view of legal and social philosophy. Situated in the former residence of the archbishop, in the center of the baroque city of Salzburg and surrounded by the scenic mountains of the Alps, the Department of Social Sciences and Economics within the University of Salzburg’s Faculty of Law is the perfect place for this workshop.

The current workshop will take place on October 11th, 2018.

This year's theme is "Fiction and Law."

More here.

Via Kristin Albrecht  @KYAlbrecht

Hunt on The Law in Plato's Laws @radfordu

Luke William Hunt, Radford University, has published The Law in Plato's Laws: A Reading of the 'Classical Thesis' at 35 Polis 102 (2018).

Plato’s Laws include what H.L.A. Hart called the ‘classical thesis’ about the nature and role of law: the law exists to see that one leads a morally good life. This paper develops Hart’s brief remarks by providing a panorama of the classical thesis in Laws. This is done by considering two themes: (1) the extent to which Laws is paternalistic, and (2) the extent to which Laws is naturalistic. These themes are significant for a number of reasons, including because they show how Laws might be viewed as a sophisticated forerunner of natural law theory. The upshot is that Plato's metaphysical commitments about legal ontology allow him to base the truth of legal propositions on the way they relate to the truth of corresponding moral propositions.

Download the article from SSRN at the link. 

Hunt on Norms, Narratives, and Politics @radfordu

Luke William Hunt, Radford University, has published Norms, Narratives, and Politics at 101 Soundings 173 (2018). Here is the abstract.

This essay considers how legal and philosophical ideals relate to contemporary politics. While political commentary is often concerned with descriptive analysis of public affairs, this essay pursues normative analysis of emerging trends in public life. The essay’s underlying theme is that “liberal” states — such as the United States — from time to time become illiberal by departing from the basic legal and philosophical norms of that tradition. Although it is difficult to draw definitive conclusions while in the moment, the tentative conclusion is that we are in the midst of a departure from liberal norms. The essay takes a discursive approach — drawing upon Appalachian culture, popular culture, and personal narrative — to highlight the altered trajectory from those norms.

Download the article from SSRN at the link. 

Institute for Interdisciplinary Legal Studies Will Host 29th World Congress of the International Association for Philosophy of Law and Social Philosophy in July 2019 @uniluzern

The Institute for Interdisciplinary Legal Studies, University of Lucerne, Switzerland, is hosting the 29th World Congress of the International Association for Philosophy of Law and Social Philosophy from July 7 to July 13, 2019. The theme of the conference is "Dignity, Democracy, Diversity." Here is a link to more information about the conference.  Here is a link to the CFP.

The Institute is also seeking applications for its Visiting Fellows Program for 2019. See the post here.