Maks del Mar on Law and the Legal Imagination @maksdelmar @aeonmag

Maks del Mar writes about why imagination is a necessity for judges and lawyers. A brilliant essay. Here, for Aeon. 

Theilen on Philip Allott's Legal Utopianism @jtthei @ChloeJSKennedy

Jens T. Theilen, Walther Schücking Institute, University of Kiel, has published Of Wonder and Changing the World: Philip Allott's Legal Utopianism at 2017 German Yearbook of International Law 60. Here is the abstract.

Utopian perspectives on law are rare – both within legal theory, which generally eschews utopianism as frivolous and unrealistic, and within utopian studies, which have largely neglected to analyse the role that law plays in utopia or on the path towards it. Philip Allott’s work, and his latest monograph 'Eutopia' in particular, constitutes a notable exception which is positioned at the intersection between law and utopianism, and this paper aims to explore that intersection with a view to identifying the conceptualisation of law that it implies. To tease out the utopian elements in Allott, I suggest reading 'Eutopia' in light of Ernst Bloch’s 'The Principle of Hope'. Three related utopian themes can thus be identified: the orientation towards the future based on dreams, imagination, and educated hope; the defamiliarisation from the present to open up possibilities of change; and the situation of utopian thought in relation to present reality, dynamically construed, with an emphasis on the need for action by human beings to propel society towards a utopian future. I argue that this framework leads to a specifically utopian account of law which is critical of the law as it stands, dynamically oriented towards an open future, and in the hands of human beings who have the power to shape and transform its content. The conclusion considers the implications of this analysis for the genre of text to which 'Eutopia' belongs: if the point is to transform law and society by way of human action, then it constitutes a utopian manifesto that aims to instigate a sense of responsibility among its readers, and thus achieve the world as it could be.

Download the essay from SSRN at the link.

Sean Coyle, Modern Jurisprudence: A Philosophical Guide, 2nd Edition, Now Available in Paperback @hartpublishing

Newly published: Sean Coyle, Modern Jurisprudence: A Philosophical Guide, 2d edition (Hart Publishing, 2017). Paperback.

The second edition of this book provides a concise and accessible guide to modern jurisprudence, offering an examination of the major theories as well as highlighting principal themes such as legality and justice. Together with new material, the second edition explores the historical developments and ideas that give modern thinking its distinctive shape. A key feature of the book is that readers are not simply presented with opposing theories, but are guided through the rival standpoints on the basis of a coherent line of reflection from which an overall sense of the subject can be gained. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis take the reader systematically through the terrain of modern legal philosophy, tracing the issues back to fundamental questions of philosophy, and indicating lines of criticism that result in a fresh and original perspective on the subject.

 

d'Aspremont on What Was Not Meant To Be: General Principles of Law As a Source of International Law @JdA_IntLaw ‏

Jean d'Aspremont, University of Manchester, School of Law, and Sciences Po Law School, is publishing What Was Not Meant to Be: General Principles of Law As a Source of International Law in Global Justice, Human Rights, and the Modernization of International Law (R. Pisillo Mazzeschi and P. De Sena, eds., Brill, 2018). Here is the abstract.

This paper reflects on the modest role fulfilled by general principles of law in contemporary international legal thought and practice. It submits that the tepidity with which international lawyers have resorted to general principles of law in practice and legal thought — and especially in their expansionist enterprises — is the result of the inability of general principle of law to operate a source of international law. In particular, it is argued here that the miserable fate of general principles of law can be traced back to a choice by early 20th century international lawyers to locate and organize the prevention of non liquet as well as analogical reasoning within the sources of international law. The following will show that the doctrine of sources of international law may not have proved the most adequate framework for the prevention of non liquet and gap-filling function that was bestowed upon general principles of law. It is only once general principles of law come to be construed and deployed in international legal thought and practice as an argumentative technique of content-determination (i.e. a mode of interpretation) and thus not as a source of international law that they have a chance to play a meaningful role in international legal argumentation.

Download the essay from SSRN at the link.

Burazin on Brian Leiter and the Naturalization of the Philosophy of Law

Luka Burazin, University of Zagreb Faculty of Law, is publishing Brian Leiter and the Naturalisation of the Philosophy of Law in The Province of Jurisprudence Naturalized (Jerzy Stelmach, Bartosz Brożek, and Łukasz Kurek eds. Warsaw: Wolters Kluwer 2017).

The paper opens with an exposition of the basic ideas of the philosophical school of naturalism and its most widespread version, methodological naturalism. This is followed by three of Leiter’s proposals for the naturalisation of questions of the philosophy of law: the first consists in naturalising the theory of adjudication modelled on replacement and normative naturalism in epistemology, the second consists in turning the philosophy of law into the abstract and reflective part of the empirical social sciences on law, and the third consists in colonising the philosophy of law with experimental philosophy. The thesis that the last version of Leiter’s naturalism is, in fact, reduced to a so-called modest methodological naturalism is put forward. The paper closes with the most important criticisms of Leiter’s naturalistic methodological approach, as well as with the thesis on the complementarity between conceptual analysis and modest methodological naturalism.

Download the essay from SSRN at the link.

Paulson on Metamorphosis in Hans Kelsen's Legal Philosophy

Stanley L. Paulson, Washington University Law School (Emeritus), has published Metamorphosis in Hans Kelsen's Legal Philosophy at 80 The Modern Law Review 860 (2017). Here is the abstract.

Two major questions stem from the fundamental shift in Hans Kelsen's legal philosophy that takes place in 1960 and the years thereafter: first, the scope of the shift and, second, its explanation. On the first question, I argue that the shift is not limited to Kelsen's rejection of the applicability of logic to legal norms. Rather, it reaches to his rejection of the entire Kantian edifice of his earlier work. On the second question, I argue that the explanation for the shift has a conceptual dimension as well as a historico‐biographical dimension. That is, I argue that Kelsen's rejection of the principle of non‐contradiction vis‐à‐vis legal norms reaches to the Kantian edifice in that the principle was presupposed in Kelsen's earlier work and appears, expressis verbis, in his 'Kantian filter'. And I argue that certain historico‐biographical data are germane, including, quite possibly, the earlier revolution in Kelsen's thought, that of 1939–40.

The full text is not available from SSRN.

Sherwin on Vico's Providence Today @RKSherwin

Richard K. Sherwin, New York Law School, has published Vico's Providence Today. Here is the abstract.

According to Vico, it is piety, the way divine providence breaks into fractured time, that teaches the ideal patterns of history. Today, we stand in need of a post-secular, metaphysical framework for this Vichian insight in order to counter the nihilist impulse that has swept through late modernity. Vico had already identified nihilism as the dark secret of Cartesianism. Indeed, it is the historical vicissitudes of that dark secret for which he presciently sought to prepare us. Piety finds its roots in something beyond the subject, beyond the will. It is that disruptive, ineffable force that resists the impulse toward totality (the will to power) in whatever historic form it may take: from the totalizing mechanics of Hobbes’ Leviathan state to the totalizing algorithmic programming that covertly constructs and drives today’s digital social media and the so-called ‘Internet of Experience.’

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Marmor on What Law Is and What Counts as Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published What Is Law and What Counts as Law? The Separation Thesis in Context at Cornell Legal Studies Research Paper No. 17-34. Here is the abstract.

The separation thesis associated with the legal positivist tradition in legal philosophy holds that the legal validity of norms depends only on their sources, not on considerations of merit or value. In this essay I show that the separation thesis comes under pressure from cases in which an answer to the question: Is o an F? partly depends on the values associated with the nature of F. This is certainly the case when we try to determine whether an object is a work of art, for example. In response, proponents of the separation thesis would want to resist the analogy with art, and maintain that the ascription of legal validity to a norm does not involve any evaluative dimensions. I argue that this line of response is not very firm, and a better way to defend the separation thesis is to see it as an answer to the question of what makes it the case that an o counts as an F in the relevant society. I try to show that this latter type of question follows from the theoretical context in which the separation thesis comes up, namely, a reductionist explanation of legal validity. My purpose here is to show how a proper construal of the separation thesis, in the context of legal positivism’s reductionist ambition, goes a long way in supporting its truth.

Download the article from SSRN at the link.

Cambridge Companion to Natural Law Jurisprudence, edited by George Duke and Robert P. George--New From Cambridge University Press @deakin @McCormickProf @CambridgeUP

New from Cambridge University Press: The Cambridge Companion to Natural Law Jurisprudence (George Duke, Deakin University, Victoria, Australia, and Robert P. George, Princeton University, NJ, USA), eds., CUP, 2017). Here from the publisher's website is a description of the book's contents.

This collection provides an intellectually rigorous and accessible overview of key topics in contemporary natural law jurisprudence, an influential yet frequently misunderstood branch of legal philosophy. It fills a gap in the existing literature by bringing together leading international experts on natural law theory to provide perspectives on some of the most pressing issues pertaining to the nature and moral foundations of law. Themes covered include the history of the natural law tradition, the natural law account of practical reason, normativity and ethics, natural law approaches to legal obligation and authority and constitutional law. Creating a dialogue between leading figures in natural law thought, the Companion is an ideal introduction to the main commitments of natural law jurisprudence, whilst also offering a concise summary of developments in current scholarship for more advanced readers.

Brings together leading international experts in the field • Provides a comprehensive overview of cutting edge scholarship in the area • Can serve as an introduction to the central area of legal theory, or the first port of call for scholars and students of natural law

Includes contributions by George Duke, Robert P. George, John Finnis, Knud Haakonssen, Jonathan Crowe, Christopher Tollefsen, Veronica Rodriguez-Blanco, Thomas Pink, Jacqueline Laing, N. E. Simmonds, Mark Greenberg, Robert Alexy, Mark C. Murphy, Gerard V. Bradley, and Kristen Rundle.

 

Strange on Pardon and Parole in Prohibition-Era New York

Carolyn Strange, Australian National University, is publishing Pardon and Parole in Prohibition-Era New York: Discretionary Justice in the Administrative State in volume 54 of the Osgoode Hall Law Journal. Here is the abstract.

Historians of early-modern England and British colonies have productively applied Douglas Hay’s germinal study of mercy. In contrast, historians of the U.S. have overlooked the utility of the conceptual tools Hay provided to prise open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism, and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. To analyse this moment, this essay asks what drove opinion against discretionary justice in the form of the pardon and parole, and traces the conditions that give rise to judgments that discretionary justice was too frequent and injudicious. A new vision of order, fixated on penal certainty, came into sharp focus over the 1920s, when mandatory sentencing statutes were introduced. Yet gubernatorial clemency survived that crisis, and in 1930 parole was professionalized and placed under stricter management. This paper confirms that modernity proved no match for discretionary justice. In its personal and administrative forms, it penetrates penal justice, despite the earnest drive to certainty and the persistent demands to terrorize criminals.

Download the essay from SSRN at the link.

Klatt on Legal Argumentation and the Rule of Law @profklatt

Matthias Klatt, University of Graz, Faculty of Law, has published Legal Argumentation and the Rule of Law. Here is the abstract.

Both the concept of legal argumentation and the concept of the rule of law are contested and subject to irrationality objections. The present article refutes these objections by analysing the two concepts and focussing on their mutual relation. Based on a new account of the rule of dual-natured law, it elaborates in detail on how law’s dual nature play out in the various forms and problems of legal reasoning, allowing for a third theory of legal argumentation which integrates formal and material elements by means of optimization.

This essay has appeared as "The Rule of Dual-Natured Law, in Legal Argumentation and the Rule of Law 27-46 (Eveline Feteris, Harm Kloosterhuis, Jose Plug, and Carek Smith, eds.; The Hague: Eleven International Publishing, 2016). Download the essay from SSRN at the link.

Cyras and Lachmayer on Visualization of Hajime Yoshino's Logical Jurisprudence

Vytautas Cyras, Vilnius University, and Friedrich Lachmayer, University of Innsbruck, have published Visualization of Hajime Yoshino's Logical Jurisprudence, at Trends and Communities of Legal Informatics: Proceedings of the 20th International Legal Informatics Symposium (IRIS) 2017 349 (E. Schweighofer, F. Kummer, W. Hoetzendorfer, and C. Sorge, eds., OCG, Vienna, 2017). Here is the abstract.

Hajime Yoshino’s Logical Jurisprudence (LJ) is an important concept in legal informatics. Yoshino aims for a logic-based systematization in the legal domain. He focuses on legal reasoning and systematization. Inevitably, embracing law as a whole brings us to Hans Kelsen’s Pure Theory of Law. In sum, three issues are important in LJ: logic, Kelsen and legal informatics. In this paper we aim to visualize the architecture of LJ. We suggest expanding this with legal ontologies and words. The granularity of word-phrase-sentence-text is about different methods which apply to different units.

Download the essay from SSRN at the link.

Tamanaha on the Combination of Formalism and Realism

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, has published The Combination of Formalism and Realism as Washington University in St. Louis Legal Studies Research Paper No. 17-03-01. Here is the abstract.

For several generations now, legal scholars in the United States have framed debates about law and judging in terms of formalism-versus-realism. This entrenched framework is grounded in a widely accepted historical account. In this essay, I dismantle this antithesis and reconstruct their relationship. When properly understood, they go together. The first half of the essay shows that the conventional historical narrative is incorrect. Realism about law and judging has long been present in the American legal tradition. This discussion covers the views of Langdell, James Fitzjames Stephen, and other nineteenth and twentieth century jurists. The second half of the essay explains why systematic rule formalism is necessary, why realism is inevitable, and how they go together. The legal system would not work absent formalism, realism is parasitic on formalism, and realism reflects the ameliorating presence of human judgments within formalistic systems. The formalism-versus-realism framework does not allow this relationship to be expressed as a coherent bundle of views about law and judging, and should be discarded.

Download the article from SSRN at the link.

Kemmerer on Sources in the Meta-Theory of International Law: Hermeneutical Conversations @kemmereralex

Alexandra Kemmerer, Max Planck Society for the Advancement of the Sciences, Max Planck Institute for Comparative Public Law and International Law, is publishing Sources in the Meta-Theory of International Law: Hermeneutical Conversations in The Oxford Handbook on the Sources of International Law (Samantha Besson and Jean D'Aspremont, eds., Oxford University Press, 2017). Here is the abstract.

A meta-theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. In this paper, drawing on the hermeneutic philosophy of Hans-Georg Gadamer and the writings of his most perceptive readers in international law, I develop a concept of reflexive situatedness prompting a constructive contextualization of sources and their interpreters in our ‘normative pluriverse’ (D’Aspremont). Following the traces of international law’s current ‘turn to interpretation’ and a reading of international law as a ‘hermeneutical enterprise’, my assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by his work — and, in particular, for a closer look at the writings of Outi Korhonen, linking her concept of situationality to an emphasis on context(s) that engages with the rhetorical dimension of Gadamer’s work. Gadamer’s conversational hermeneutics opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities.

Download the essay from SSRN at the link.

A New Book By Jeffrey Lipshaw: Beyond Legal Reasoning: A Critique of Pure Lawyering @Suffolk_Law @routledgebooks

Jeffrey Lipshaw, Suffolk University Law School, has published Beyond Legal Reasoning: A Critique of Pure Lawyering (Routledge, 2017). Here, from the publisher's website, is a description of the book's contents.

The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of ‘thinking like a lawyer’ or ‘pure lawyering’ aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors. This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.

Luban and Russell on Philosophical Legal Ethics @DavidLuban

David J. Luban, Georgetown University Law Center, and W. Bradley Russell, Cornell University School of Law, are publishing Philosophical Legal Ethics: An Affectionate History, in volume 30 of the Georgetown Journal of Legal Ethics (2017). Here is the abstract.

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory.

Download the article from SSRN at the link.

Van Domselaar on Tragic Legal Choices

Iris van Domselaar, University of Amsterdam, has published On Tragic Legal Choices as Amsterdam Law School Research Paper No. 2017-03 and Law and Justice Across Borders Research Paper 2017-01. Here is the abstract.

In this paper the concept of the tragic legal choice is established as an indispensable complement to our theoretical understanding of adjudication. Not only in rare, exotic and consequently numerically negligible cases, judges may be confronted with tragic legal choices. In these cases adjudication will engender a sense of tragic loss, a lack of clarity, incommensurability and messiness, which cannot be avoided, overcome, or dismantled as a pre-reflective or extra-legal illusion. In this sense, this paper is a harbinger of ‘bad news’ for law and adjudication. The paper is organized as follows. It firstly discusses the concept of the ‘tragic’ in (the history of) practical philosophy. Subsequently, the central features of a tragic legal choice are laid out: it is the result of a genuine conflict between judicial commitments, it leaves a tragic remainder in its wake and it typically evokes a tragic response on the part of the judge. In the elaboration of the first feature, different categories of conflicts between judicial commitments that may give rise to tragic legal choices are distinguished. After this survey, the purported advantages and drawbacks of anchoring this concept in both the theory and practice of adjudication are analysed. Throughout the paper a variety of legal cases will be discussed, partly in order to foster the reader’s sense of the tragic.

Download the article from SSRN at the link.

Bateman on Socrates and Cicero: Functionality as Justice

C. G. Bateman, University of British Columbia Faculty of Law, has published Socrates and Cicero: Functionality as Justice at 11 International Zeitschrift 11 (December 2016). Here is the abstract.

Socrates and Cicero thought of justice simpliciter as connected to functionality. This paper considers some of the characteristics of what they thought of as justice as well as the confluence of ideas in various selections from both authors.

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Green on Constitutional Truthmakers @olemisslaw

Christopher R. Green, University of Mississippi School of Law, has published Constitutional Truthmakers. Here is the abstract.

Many disputes in constitutional theory — in particular, disputes over forms of originalism and non-originalism — would be far clearer if they employed two distinctions that philosophers have drawn repeatedly in dealing with the nature of reality. First, we should distinguish constitutional epistemology from constitutional ontology. Constitutional epistemology (together with epistemically-freighted constitutional pragmatics) tells us who decides questions of constitutional interpretation: the distribution of interpretive authority between government and citizens, between and within branches of government, and for all of these interpreters, the distribution of such authority over time. It tells us what burdens of proof govern different interpreters’ determinations, and what sorts of evidence might satisfy those burdens. Akin to the Erie/Hanna regime, such “procedural” matters of constitutional epistemology and pragmatics could be changed radically even if the underlying “substance” of constitutional interpretation — what makes claims about the Constitution true or false — stays the same, and vice-versa. Attention to this epistemic-ontological distinction undermines or complicates recent arguments against originalism by Richard Fallon, Daniel Farber, Martin Flaherty, Helen Irving, Andrew Koppelman, Suzanna Sherry, and David Strauss, as well as a classic argument by Justice Jackson, but also raises trouble for arguments for originalism by the late Justice Scalia and Lawrence Solum. Epistemic vices of either a fixed-meaning or a common-law Constitution cannot undermine a constitutional theory’s ontological virtue — if it possesses it — of accurately representing our actual Constitution, and epistemic virtues cannot compensate for the ontological vice of wrongly identifying the Constitution itself. Second, as a precursor to assessing constitutional theories’ ontological virtues, we should classify forms of originalism or non-originalism based on their constitutional truthmakers. Do they have any at all? Do they have more than one? Pragmatists deny the existence of any truthmaker external to the practice of judging, while pluralists point to more than one. Truthmakerless constitutional theories like those of Judge Posner, Eric Segall or the early Felix Frankfurter cannot vindicate “wrong the day it was decided” (WTDIWD) data from the Court itself, and irreducibly plural constitutional theories like those of Philip Bobbitt cannot vindicate such data in cases where constitutional modes conflict. An integrated constitutional truthmaker like that proposed by the early Richard Fallon, which sets out a criterion for picking winning and losing constitutional arguments then different modes clash, has a distinct ontological advantage over pragmatist or irreducibly plural constitutional theories. Even a theory merely positing an unknown proper commensuration of conflicting constitutional arguments into answers for particular cases — that is, a reducible pluralism — can vindicate WTDIWD data in a way pragmatism and Bobbitism cannot. Single-truthmaker forms of living constitutionalism are thus ontologically preferable to no-truthmaker or multiple-truthmaker forms. We can then ask (as I do and will do in earlier and future work) whether that single truthmaker matches, or does not match, the “this Constitution” to which Article VI refers, and to which, on a naïve view of our current practices, current officeholders swear an oath.

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Slocum on The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation From Linguistics and Philosophy

Brian G. Slocum, McGeorge School of Law, is publishing Introduction: The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy in The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation From Linguistics and Philosophy (University of Chicago Press, 2017). Here is the abstract.

Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential? To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.

Download the essay from SSRN at the link.