Legal Science, Legal Theory, Legal Naming

Hanoch Dagan, Tel Aviv University, Buchmann Faculty of Law, and Roy Kreitner, Radcliffe Institute for Advanced Study, Harvard University, and Tel Aviv University, Buchmann Faculty of Law, have published The Character of Legal Theory, in the Cornell Law Review. Here is the abstract.

For nearly a century legal scholars have vacillated between two strategies for dealing with the collapse of legal science as an autonomous discipline. One typical response has been to abandon the notion of a legal theory and to borrow a theoretical discipline from the social sciences or from the humanities. Another response has been to discard the idea of legal theory by highlighting the practical wisdom of lawyers and celebrating law as a craft.

Our mission in this Essay is to describe legal theory as an enterprise robust enough to justify separate naming. Legal theory focuses on the work of society's coercive normative institutions. It studies the traditions of these institutions and the craft typifying their members, while at the same time continuously challenging their outputs by demonstrating their contingency and testing their desirability. In performing the latter tasks, legal theory necessarily absorbs lessons from law’s neighboring disciplines. But at its best, legal theory is more than a sophisticated synthesis of relevant insights from these friendly neighbors, because of its pointed attention to the persistent jurisprudential questions regarding the nature of law, notably the relationship between law's normativity and its coerciveness and the implications of its institutional and structural characteristics.

Before we turn to elaborate on these features, we begin with an outline of the three other important discourses about law: law and policy; socio-historical analysis of law; and law as craft. Sketching these three genres of legal scholarship is instrumental for our task because analyzing the ways in which legal theory is different from these other modes helps us characterize legal theory.

Download the article from SSRN at the link.

Montesquieu's Spirit of the Laws

Murray Bessette, Morehead State University, has published "Montesquieu on Nature and Law: A Preface to the Understanding of the Spirit of the Laws," as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

While the title of Montesquieu's greatest oeuvre, The Spirit of the Laws, identifies the subject of the work, it nevertheless remains obscure. Many presume to know what law is. The title, however, will prompt most readers to ask: What is the spirit of the laws? Insofar as the title implies the existence of a relation between spirit and law, it also implies that knowledge of what both spirit and law are is a necessary precursor to understanding it. Montesquieu's choice of title, then, should lead any reader who ponders it to raise three philosophic questions: What is law? What is spirit? And, what is their relation? The reader sensitive to the distinction in which philosophy is said to originate - that between nature and law - sees the question of nature lurking in the others. That nature is a foremost concern of the work is hinted at by Montesquieu's use of the word and its derivatives in the book and chapter headings. Thus, to the three questions above is added a fourth: What is nature? The following essay is an attempt to sketch Montesquieu's answers to these four questions as he presents them in both the preface and the first book of The Spirit of the Laws.

Shakespeare and Political Legitimacy

Eric Heinze, Queen Mary, University of London School of Law, has published "Heir, Celebrity, Martyr, Monster: Legal and Political Legitimacy in Shakespeare and Beyond," in volume 20 of Law and Critique (2009). Here is the abstract.

The Seventeenth Century places Western political thought on a path increasingly concerned with ascertaining the legitimacy of a determinate individual, parliamentary or popular sovereign. Beginning with Shakespeare, however, a parallel literary tradition serves not to systematise, but to problematise the discourses used to assert the legitimacy with which control over law and government is exercised. This article examines discourses of legal and political legitimacy spawned in early modernity. It is argued that basic notions of 'right', 'duty', 'justice' and 'power' (corresponding, in their more vivid manifestations, to categories of 'heir', 'celebrity', 'martyr' and 'monster') combine in discrete, but always encumbered ways, to generate a variety of legitimating discourses. Whilst transcendentalist versions of those discourses begin to wane, their secular counterparts acquire steadily greater force. In addition to the Shakespearean histories, works of John Milton, Pierre Corneille, Jean Racine, Friedrich Schiller and Richard Wagner are examined, along with some more contemporary or ironic renderings.

Download the paper from SSRN here.

What Not To Bare

Erik Jensen of Case Western Reserve Law School makes the case for judicial sartorial minimalism. But what, I ask, does this say about judicial conservatism?

Erik M. Jensen, CWRU Law School, "Under the Robes: A Judicial Right to Bare Arms (and Legs and...)?" in volume 12 of the Green Bag. Here is the abstract.

This essay considers a time-dishonored question: What, if anything, do judges have on under their robes? After serious research and thought, the author concludes that judges are-or, in an economically rational world, should be-minimalists.

Download the article from SSRN here.

Montesquieu and the Supreme Court

Nelson Lund, George Mason University School of Law, has published "Montesquieu, Judicial Degeneracy, and the United States Supreme Court," as George Mason Law & Economic Research Paper 09-12. Here is the abstract.

This essay, which is aimed primarily but not exclusively at audiences in the field of philosophy, originated in a lecture prepared for a series on "Natural Moral Law and Contemporary Society" at the School of Philosophy of the Catholic University of America. Using the Supreme Court's sodomy and abortion decisions as introductory examples, the essay briefly discusses the roots of judicial hubris in American constitutional law. The essay then looks more deeply into an institutional transformation rooted in Montesquieu's insight that it is both necessary and impossible to de-politicize the judicial function. The politically moderating role performed by judges in Montesquieu's English constitution does not translate easily into the American system of written constitutions with judicial review. The essay argues that the U.S. Supreme Court is not qualified to correct written human law through appeals to higher laws, including the natural moral law, and that this conclusion is consistent with the understanding of law both in our Constitution and in St. Thomas Aquinas' Summa Theologica.

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Law and Pornography

John M. Kang, St. Thomas University School of Law, has published "Taking Safety Seriously: Using Liberalism to Fight Pornography," in volume 15 of Michigan Journal of Gender & Law (2008). Here is the abstract.

In the law review literature on pornography, there is sometimes the depressing story that either liberalism is limply unhelpful to combat pornography or, in its role as philosophical handmaiden, liberalism happily does pornography's bidding. Liberalism as referred to here is not meant as shorthand for the political ideals of the Democratic Party. Rather, it is meant to serve as an emblem for a loose collection of commitments to free speech, legal equality, toleration, and limited government. But the description of liberalism that pervades the law review literature on pornography seems exaggerated and far from inevitable. Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, I propose to illuminate what appears to me the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, I argue that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.

Civility, Constitutionalism, and the Image of Men

John M. Kang, St. Thomas University School of Law, has published "Manliness and the Constitution," at 32 Harvard Journal of Law and Public Policy 261 (2009). Here is the abstract.

Much of the legal scholarship regarding gender focuses justifiably on discrimination against women; accordingly, if such scholarship does discuss men, it does so chiefly to illuminate the ways in which women have been oppressed by them.

My article seeks to explore men's identity as its own topic, specifically in its relation to the Constitution. I begin my exploration with early modern England, for the American colonists would have to grapple with the ideas that arose during this time. My argument proceeds as follows. Prominent conceptions of male identity in early modern England made constitutional democracy, as the eighteenth century Americans understood it, philosophically unrealistic. Thomas Hobbes represented one view, Robert Filmer the other. Hobbes argued that men's violent hypermasculinity made them ineligible for the disciplined and mature enterprise of self-government; he believed that only an absolute monarch could control men for purposes of collective peace. Filmer also argued that men were generally incompetent for self-government. But unlike Hobbes, he argued that men were psychologically infantile and thus insufficiently manly for self-government. Filmer insisted that only the king had the requisite manliness of a powerful father and that men required the former's love and guidance while they owed him complete obedience.

The American colonists constructed a new understanding of male identity, one that was compatible with the logic of self-government in their constitution. Against Hobbes, the colonists pressed American men to embrace civility rather than being driven by a violent hypermasculinity. Against Filmer, the colonists urged American men to evince their manly independence by deliberating political truths instead of deferring to social betters. I then explain how these views by the colonists were manifested in the federal Constitution.

Download the article from SSRN here.

Law, Literature, and Political Thought

P. G. Monateri, University of Torino School of Law, has published "Sovereign Ambiguity - From Hamlet to Benjamin via Eliot and Schmitt." Here is the abstract.

The Author examines how Romantic Ambiguity lies at the heart of the legal notion of Sovereignty, applying a law and literature approach to notions developed by Benjamin and Carl Schmitt. Moving from a sophisticated analysis of literary texts, the inquiry intends to unveil the subtle strategies that lay behind the construction of Modernity and of its representational canon. The research perspective intentionally discloses the inherent dialectic between aesthetics and law. On this ground this paper rethinks the theory of the 'state of exception' as a pivotal concept for a deep understanding of Law and Politics (and their proper untraced boundaries), offering an alternative interpretation with respect to Giorgio Agamben's thought. The Author's lecture comes to rewrite even the centrality of representation as a fundamental notion both in literary and in political terms.

Download the paper from SSRN here.

Steven Pinker's The Stuff of Thought

Lorie Graham and Stephen M. McJohn, Suffolk University Law School, have published "Cognition, Law, Stories," in Minnesota Journal of Law, Science, & Technology (Winter 2009). Here is the abstract.

This essay reviews Steven Pinker, The Stuff of Thought (Penguin 2007), which offers insights from cognitive science just where it overlaps the most with law - how we use basic cognitive categories like intent, space, time, events and causation. The Stuff of Thought might offer insights into a broad range of issues in legal theory. Legal theory could make more use of such cognitive science concepts as chunking, recursion, and the primary qualities of an object. Other topics likewise resonate in thinking about the law: The book suggests that metaphor is an important cognitive tool, but less constraining than might be thought. Linguistic analysis of verb classes and polysemy suggests that words have surprisingly determinate meaning. Our apparent innate sense of causation (drawn from an analysis of language) sheds light on the legal treatment of causation. Lastly, The Stuff of Thought describes the role of indirect speech, whereby people convey information without revealing their state of mind - which often allows social interaction to proceed smoothly. Default rules in the law, we suggest, often play an analogous role.

The essay then explores the cognitive aspects of stories (following literary theorists like Mark Turner who have linked cognitive science with narrative theory), suggesting a recursive definition of story, and another angle to the trolley problem. Looking at the cognitive role of stories permits a fuller view of legal reasoning, learning, and remembering. This fits well with recent scholarship, such as work on origin stories, and law and genre theory.

Download the essay from SSRN here.

21 Grams

Bruce L. Hay, Harvard Law School, has published "The Earth Turned to Bring Us Closer," in volume 29 of Cardozo Law Review (2008). Here is the abstract.

This paper is part of a symposium issue entitled "Law and Event," whose subject is the work of the contemporary French philosopher Alain Badiou. The paper offers a reading of "21 Grams," a film that treats in narrative terms some of the central problems addressed in Badiou's work, notably the connections between love, fate, and mathematics, and the mysterious nature of the "event" in history. The paper emphasizes the film's effort to blend Greek myth and philosophy, Christian theology, and modern chaos theory.

Download the paper from SSRN here.

Some Gift Suggestions For the Non-Denominational Holidays

Don't know what to give for the holidays? Pierre Bayard's Sherlock Holmes Was Wrong: Reopening the Case of the Hound of the Baskervilles, newly translated into English by Charlotte Mandell, is now available. In this "revisionist view" of the classic Conan Doyle novel, French critic argues that the iconic detective didn't know what he was doing half the time. Monsieur Bayard is the author of How To Talk About Books You Haven't Read, and Who Killed Roger Ackroyd: The Mystery Behind the Agatha Christie Mystery.

Now available on DVD: Perry Mason: Season 3, volume 2; The Sopranos: The Complete Series; volume 1 of cult hit Pushing Daises, and both seasons of a little known series Dead Like Me, which came and went quickly, but starred Mandy Patinkin, who heads up a group of "reapers" in charge of leading the recently dead across the line that separates the living from those who have departed this life. I highly recommend Dead Like Me and Pushing Daisies, which has a similar theme (crossing the line between life and death), for their wit and thoughtful consideration of the issues that touch us all. Pushing Daisies is, however, more explicitly law-related, since it's about solving crime.

The Unemployed Philosopher's Guild offers a number of interesting and amusing items, including a disappearing civil liberties mug (pour in hot liquid and watch parts of the Bill of Rights vanish) and a Democratic Dream mug (same instructions; all of the U.S. turns a Democratic blue). The site also offers religious items, but be warned--you'll need to bring your sense of humor with you.

Law, Philosophy, and the Rhetorical Tradition

Francis Joseph Mootz III, UNLV School of Law, has published "The Irrelevance of Contemporary Academic Philosophy for Law: Recovering the Rhetorical Tradition," in On Philosophy in American Law (F. J. Mootz III, ed.; Cambridge University Press, 2009). Here is the abstract.

This short paper will appear in a volume of original essays, On Philosophy in American Law (Francis J. Mootz III ed., Cambridge Univ. Press forthcoming 2009). I argue that the undeniable rift between philosophy and law is more than a simple dichotomy of theory and practice. Instead, the sharp distinction between philosophy and law occurred when both disciplines built insular guilds that employed distinctive vocabularies to distinguish themselves from rhetoric, and it is by returning to their roots in rhetoric that philosophy and law might find their common ground in the elucidation of rhetorical knowledge.

Download the paper from SSRN here.