Wieboldt on Our Natural Law Moment(s)

Dennis J. Wieboldt, III, University of Notre Dame, is publishing Our Natural Law Moment(s) in the Georgetown Journal of Law and Public Policy. Here is the abstract.

To both its sharpest critics and strongest proponents, natural law increasingly appears to be enjoying a "moment" in American legal discourse. The 2024 Herbert W. Vaughan Lecture at Harvard Law School, in fact, took as its subject "The Natural Law Moment in Constitutional Theory." Following the publication of Adrian Vermeule's Common Good Constitutionalism, among other works on natural law in the last half-decade, Alicea's 2024 Vaughan Lecture raises two important questions for those interested in the United States' contemporary jurisprudential debates: is there something unique about today's natural law moment, and, if so, what might understanding previous natural law moment(s) portend for contemporary debates about natural law? This Article assumes the challenge of historicizing the United States' latest natural law moment. In light of the 2024 Vaughan Lecture, it first illustrates that there were at least two discernible natural law moments in twentieth-century American legal history which emerged in response to then-novel developments in the legal academy. Then, this Article demonstrates that today's natural law moment shares important continuities and discontinuities with the natural law moments that the American legal profession began to experience almost exactly one hundred years ago. In concluding, this Article proposes that those today engaged in normative jurisprudential debates would be benefitted by a more capacious understanding of twentieth-century American legal history that takes seriously our often-forgotten natural law moments.

Download the article from SSRN at the link.

Papke on The Jurisprudence of Transcendentalism

ICYMI: David Ray Papke, Marquette University Law School, has published The Jurisprudence of Transcendentalism at 60 Idaho L. Rev. 185 (2024). Here is the abstract.

This article begins by sketching the evolving legal fabric of Antebellum America, stressing the way law and legal institutions came to play larger and more trusted roles in sociopolitical life during that period. Ralph Waldo Emerson, Henry David Thoreau, and the other Transcendentalists reacted negatively to this societal “legalization,” and as the second part of this article indicates, their jurisprudence was a largely negative critique of law and legal institutions. The third part of the article explores the part this jurisprudence played in the Transcendentalists’ critique of the Fugitive Slave Law of 1850. In conclusion, the article maintains that even in the present the jurisprudence of the Transcendentalism is a valuable demystification of man-made law and a warning against an unreflective belief in law and the rule of law.

Download the article from SSRN at the link.

Sayid on Law, Language, and Aboutness: Diaz v. United States as Case-Study

Cosim Sayid, Rutgers Institute for Law and Philosophy, is publishing Law, Language, and Aboutness: Diaz v. United States as Case-Study in the Mississippi Law Journal. Here is the abstract.

The Supreme Court’s recent decision in Diaz v. United States is a simple interpretive dispute concerning when expert testimony is ‘about’ a defendant’s possession of mens rea conducted by justices who are avowedly textualist and yet reached diametrically opposite conclusions. While the court reached the right result in permitting testimony concerning behavior of members of a class including the criminal defendant, the rationale it offered is at best incomplete and at worst incorrect. This essay introduces into legal analysis the rigorous study of aboutness in analytic philosophy, which is used to augment, rather than attack, the textualist analyses offered by the justices. The essay develops the tools of aboutness in a straightforward way that should serve as a primer for those interested in the technique and its value – a group which should definitely include those interested in textualist interpretation. Taking aboutness seriously elegantly justifies the correct result in Diaz. The essay concludes on the speculative note that aboutness can be used to resolve other intra-textualist disputes, such as the thorny one in Bostock v. Clayton County. Thus, attending to aboutness allows us to cleanly explain the meaning of Federal Rule of Evidence 704, and it may lead to further cogent explanations where thorny disputes have pervaded the law even against the common ground of shared textualism.

Download the article from SSRN at the link.

Sevel on The Rule of Law: A Thought Pattern @michaelsevel.bsky.social

Michael Sevel, The University of Sydney Faculty of Law, is publishing The Rule of Law: A Thought Pattern in The Rule of Law in Ancient Rome (Eleanor Cowan, Kit Morrell, Andrew Pettinger, and Michael Sevel, eds., Oxford University Press, eds, 2025). Here is the abstract.

The interdisciplinary revival in rule of law studies over the last quarter century has produced an impressive diversity of views about the ideal's content, priority, and value. That diversity has sometimes encouraged the skeptical view that it has no conceptual core or nature, and is either 'essentially contested' or else only empty political rhetoric. I argue that amongst the various views about the rule of law developed over the centuries, there is a discernible, recurring thought pattern upon which the many variations have been proliferated. Whatever else it is, the rule of law is realized when a political community has an efficacious legal system with certain enabling and pervasive characteristics, which protects its members from something presumed in that community to be undesirable, often identified as the arbitrary exercise of power. I explain and illustrate each aspect of this pattern, and draw a few lessons about how it guides, or fails to guide, current rule-of-law debates.

Download the essay from SSRN at the link.

Sachs on Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles @StephenESachs @HarvardJLPP

Stephen E. Sachs, Harvard Law School, is publishing Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles in the Harvard Journal of Law and Public Policy. Here is the abstract.

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Download the essay from SSRN at the link.

Levy on Three Arguments Against Metaphysical Libertarianism @KenLevy2020 @LSULawCenter @LSULawProfs

Ken Levy, Louisiana State University Law Center, has published On Three Arguments Against Metaphysical Libertarianism at 76 Review of Metaphysics 725 (June 2023). Here is the abstract.

I argue that the three strongest arguments against metaphysical libertarianism—the randomness objection, the constitutive luck objection, and the physicalist objection—are actually unsuccessful and therefore that metaphysical libertarianism is more plausible than the common philosophical wisdom allows. My more positive thesis, what I will refer to as “Agent Exceptionalism,” is that, when making decisions and performing actions, human beings can indeed satisfy the four conditions of metaphysical libertarianism: the control condition, the rationality condition, the ultimacy condition, and the physicalism condition.

Download the article from SSRN at the link.

Watson on Metalinguistic Negotiation in Legal Speech @BWatson_theory

Bill Watson, Harvard Law School, is publishing Metalinguistic Negotiation in Legal Speech in Law & Philosophy. Here is the abstract.

This paper examines the role of metalinguistic negotiation in lawyers’ and judges’ speech about the law. A speaker engages in metalinguistic negotiation when the speaker uses a term to advocate for what that term should mean or how it should be used relative to context. While I doubt that legal practitioners employ metalinguistic negotiation in the ways that David Plunkett and Tim Sundell have proposed, it is plausible that practitioners do so in another way. Specifically, I contend that lawyers and judges sometimes use key terms in legal interpretation – e.g., ‘plain’, ‘meaning’, or ‘holding’ – to advocate for what those terms should mean or how courts should use them in adjudication. This suggests an intriguing role for metalinguistic negotiation in legal argumentation, one that could shed light on practitioners’ disputes in a range of cases dealing with constitutional, statutory, or common-law interpretation.

Download the article from SSRN at the link.

Tourkochoriti on Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought @IoannaTourkocho @UniofGalwayLaw @CambridgeUP

Ioanna Tourkochoriti, Harvard Law School; National University of Ireland, Galway (NUIG) - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, is publishing Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought in Comparative legal history, the Values, Purposes and Methods of Historical Comparison (Cambridge University Press, forthcoming 2023). Here is the abstract.

This chapter proposes to approach comparative rights jurisprudence from the perspective of philosophy of history. Focusing on the difference in the protection of speech in France and the US, it suggests that comparative history helps make sense of the formation of philosophical conceptions on the appropriate limits to free speech. Some philosophical ideas formed in response to historical facts led to the emergence of legal traditions. These traditions can help us understand the divergence in the protection of freedom of speech between France and the US. The central argument is that the balancing of freedom of speech and other values in France and the United States can be understood by reference to the role of the government and the understanding of liberty. The chapter aims to approach critically two different conceptions of republicanism and their significance for rights. The methodology that it follows is Gadamer’s hermeneutics. Gadamer describes human understanding as formed on the basis of prejudices. By that the means preliminary judgments. The chapter identifies some ideas which form the ex ante understanding of the jurists in a legal system concerning the necessity to protect one liberty over another. The difference in approach between France and the US indicates a profound difference which concerns the “imaginary institution” of society and the state on the two sides of the Atlantic.

Download the essay from SSRN at the link.

Schroeder on A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism @cardozojersj

Joshua J. Schroeder, Schroeder Law, is publishing A Court of Chaos and Whimsy: On the Self-Destructive Nature of Legal Positivism Forthcoming, The Cardozo Journal of Equal Rights and Social Justice in the Cardozo Journal of Equal Rights and Social Justice. Here is the abstract.

Each of the four most famous dictators in modern Western history, Adolf Hitler, Porfirio Díaz, Napoleon Bonaparte, and Oliver Cromwell, were legal positivists. This is to say that they rejected both the common law and natural law conceptions of human rights. They furthermore rejected the judiciary’s equitable power to enforce human rights independently of politics by characterizing the old Chancery of England as a court of chaos and whimsy, adopting John Selden’s religious rejection of equity as a “roguish thing.” As Bertrand Russell recounted in his History of Western Philosophy, the philosophical avatars of German, French, and English despotism, Hegel, Rousseau, and Hobbes, provided the ideological bases for legal positivism in stark realism and relativism. Yet, the United States’ legal establishment will not shake off these problematic philosophies as clearly self-destructive and illogical. Rather, inspired by Oliver Wendell Holmes, Jr., the United States presently embraces them by willfully ignoring how Holmes punished Porfirio Díaz’s leading critic Eugene V. Debs. The road to this state of affairs in American law was paved by an under-emphasis of the majority view of the American Revolution, embodied by the contributions of James Otis and Phillis Wheatley. Professor Adrian Vermeule seemed to realize that real American conservatism may require a defense of liberal Republican values. Thus, he blamed Scalia’s originalism for being “content to play defensively within the procedural rules of the liberal order,” and that real conservatives should abandon the founding and embrace “illiberal legalism,” a form of progressive legal positivism that Vermeule swears “is not legal positivism.” Such defenders of Hobbes’ Leviathan learned from Hobbes to destroy exactly the positions they, in fact, defend. Just as Selden rejected measuring the chancellor’s foot only to measure Cromwell’s, Vermeule’s rejection of Scalia’s originalism and legal positivism is ‘aufhebung,’ rejected, but preserved. This article is dedicated to the illumination of legal positivism, which often destroys itself in these sort of illogical Hegelianisms.

Download the article from SSRN at the link.

Owens and Coyne on Classical Liberals on War and Imperialism @ccoyne1 @GeorgeMasonU

Matthew Owens and Christopher J. Coyne, both of George Mason University, have published Classical Liberals on War and Imperialism: A Historical Survey. Here is the abstract.

This paper surveys the views of twenty key British and non-British figures in the classical liberal tradition on the issues of war, imperialism, and alternative paths to peace. These ideas are important both for purely historical reasons, and because they are relevant to contemporary conversations about the complexities and nuances of foreign relations. We identify common themes across these thinkers while noting that there is no single classical liberal position on these issues. In addition to identifying commonalities, we also summarize tensions and contradictions, both within the work of individual figures and across the thinkers surveyed. We include two appendices consisting of tables summarizing the views of each of the thinkers discussed throughout the survey.

Download the article from SSRN at the link.

Guerra-Pujol on Coase and the Corleones

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico, is publishing Coase and the Corleones in The Godfather and Philosophy: We’re Gonna Make‘em an Argument They Can’t Refute (Joshua Heter and Richard Greene, eds., Open Court, 2023). Here is the abstract.

My contribution to the new volume on The Godfather and Philosophy will explore the problem of reciprocal harms in the context of the famous wedding scene in the original Godfather movie. By way of background, one of the most influential ideas in legal, moral, and political philosophy is the harm principle or the notion that people should be free to do or say whatever they wish unless their actions or words cause harm to somebody else. The Godfather, however, shows us why the harm principle is logically incoherent. Aside from the difficulty of defining what counts as a harm, the main problem with the harm principle is that harms are often reciprocal in nature, a counterintuitive idea that can be traced back to the work of Ronald Coase. That is, most harms are, logically speaking, either the direct or indirect result of both the wrongdoer’s and the victim’s decisions. (This short paper is part of a larger series of works that I have written over the years using examples from popular culture to illustrate the problem of reciprocal harms.)

Download the essay from SSRN at the link.

Want More Jeremy Bentham? Check Out UCL Press's Website @UCLpress @TranscriBentham

UCL Press has a number of open-access titles on Jeremy Bentham available, including the Journal of Bentham Studies. Explore them here. 

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

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

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

Download the paper from SSRN at the link.

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

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

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

Download the article from SSRN at the link.

Persaud on The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy @FAMULaw @seattleulaw

Shiv Persaud, Florida A&M University College of Law has published The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy at 20 Seattle Journal for Social Justice 63 (2021). Here is the abstract.

The Article discusses an application of the ancient Indian concepts of Dharma and Yuga, over our constitutional history in order to give us a clearer philosophical understanding of what the Constitution means to us and our future. Perhaps it is time to start talking about the real intent of the Framers in forming “a more perfect union” and how to get there. The purpose of this Article is to open a new discussion on these issues against a different background of critical analysis, rooted in Eastern philosophy.

Download the article from SSRN at the link. 

Call For Abstracts: Better Call Saul and Philosophy: I Think, Therefore I Scam

 

Call for Abstracts!

Better Call Saul and Philosophy: I think, Therefore I Scam

Edited by Joshua Heter and Brett Coppenger

Abstracts are sought for a collection of essays on any philosophical topic related to the hit television series Better Call Saul to be published by Carus Books (this is the same editorial team that was long with Open Court Publishing). Potential contributors may want to examine previously published volumes such a Westworld & Philosophy as well as The Man in High Castle & Philosophy.

Abstracts and eventual essays should be written for an educated but non-specialized audience (with an approximate length of 10 to 12 pages).

Contributor Guidelines:

Email abstracts (and any questions) to: bettercallsaulandphilosophy@gmail.com

1. Abstracts should be between 100 - 500 words.

2. Potential contributors must include a resume/CV for each author/coauthor.

3. Initial submissions should be made by e-mail as either a Word doc. or a PDF.

4. Deadlines:

Abstracts due by August 15, 2021

First drafts due by November 15, 2021

Final drafts due by January 15, 2022

(Early submissions are encouraged and welcomed!)

Kellogg on Pragmatism, Logic, and Law (Lexington Books, 2020)

Frederic R. Kellogg, Universidade Federal de Pernambuco; George Washington University, has published Pragmatism, Logic, and Law (Lexington Press, 2020). Here is the abstract.

Pragmatism, Logic, and Law offers a view of legal pragmatism consistent with pragmatism writ large, tracing it from origins in late 19th century America to the present, covering various issues, legal cases, personalities, and relevant intellectual movements within and outside law. It addresses pragmatism’s relation to legal liberalism, legal positivism, natural law, critical legal studies (CLS), and post-Rorty “neopragmatism.” It views legal pragmatism as an exemplar of pragmatism’s general contribution to logical theory, which bears two connections to the western philosophical tradition: first, it extends Francis Bacon’s empiricism into contemporary aspects of scientific and legal experience, and second, it is an explicitly social reconstruction of logical induction. Both notions were articulated by John Dewey, and both emphasize the social or corporate element of human inquiry. Empiricism is informed by social as well as individual experience (which includes the problems of conflict and consensus). Rather than following the Aristotelian model of induction as immediate inference from particulars to generals, a model that assumes a consensual objective viewpoint, pragmatism explores the actual, and extended, process of corporate inference from particular experience to generalization, in law as in science. This includes the necessary process of resolving disagreement and finding similarity among relevant particulars.

Download the introduction from SSRN at the link. The book is available from Lexington Press. Here is a link to the publisher's website.

Bix on Reflections on Truth in Law @UofMNLawSchool

Brian Bix, University of Minnesota Law School, has published Reflections on Truth in Law in 8 Cosmos + Taxis (2020). Here is the abstract.

This short article was written as part of a Festschrift for Susan Haack (published in the journal, Cosmos + Taxis, vol. 8 (2020)). It focuses on the intricacies of statements of truth within and about law. Truth about particular legal propositions often turns on some combination of “will” and “reason”: the decisions made by officials authorized to make choices for the community, on one hand, and what follows from those decisions, as a matter of the distinct form of practical reasoning known as “doctrinal reasoning.” And where will and reason conflict, sometimes there may be, if only temporarily, more than one legal truth.

Download the essay from SSRN at the link.

Schauer on Social Science and the Philosophy of Law @UVALaw

Frederick Schauer, University of Virginia School of Law, is publishing Social Science and the Philosophy of Law in Cambridge Companion to the Philosophy of Law (John Tasioulas, ed., Cambridge, 2020). Here is the abstract.

H.L.A. Hart’s description of his jurisprudential enterprise as an exercise in “descriptive sociology” raises important questions, questions going beyond Hartian exegesis, about the role of empirical social science in addressing jurisprudential questions. This entry focuses on the background empirical assumptions and conclusions in Hart’s own work, on the empirical dimensions of conceptual analysis, on the empirical challenges of legal pluralism, and on the empirical aspects of philosophical analysis of legal reasoning and legal compliance.

Download the essay from SSRN at the link.

Herstein on Justifying Standing to Give Reasons: Hypocrisy, Minding Your Own Business, and Knowing One's Place @oriherstein @HujiLawOfficial

Ori J. Herstein, The Hebrew University of Jerusalem, Faculty of Law; King's College London, Dickson Poon School of Law, is publishing Justifying Standing to Give Reasons: Hypocrisy, Minding Your Own Business, and Knowing One’s Place in Philosophers' Imprint (Forthcoming). Here is the abstract.

Numerous everyday practices exhibit the normative structure of “standing”: forbidding certain interventions in the affairs of others and permitting ignoring such interventions. This normative structure turns on facts about the person intervening and not on facts determinative of the validity of her intervention. When valid, directives count as reasons to do as they direct. When interventions take the form of directives, standing practices may permit excluding those directives from one’s practical deliberations, regardless of the directives’ validity or normative weight. Standing practices are, therefore, puzzling – forbidding the giving of genuine reasons and, if given, permitting disregarding such reasons. What (pro tanto) justifies standing practices are the values they protect which, depending on the particular practice, include privacy, autonomy, independence, valuable relationships, and equal respect. These values count in favor of standing’s duty against certain interventions and, when these duties of non-intervention are breached, the values underpinning those duties count in favor of standing’s permission to discount or exclude those interventions from one’s practical deliberations – the normative weight of those interventions notwithstanding.

Download the article from SSRN at the link.