Legal Theory Blog
All the theory that fits!
This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc.
Sunday, August 31, 2003
Legal Theory Calendar
At the University of Texas, the UT Symposium on Globalization and the Judiciary starts today.
Hegel Society of Great Britain, Annual Conference, "Hegel and Social Theory," at St Edmund Hall, Oxford.
At the University of Texas, the UT Symposium on Globalization and the Judiciary continues.
At Oxford, Hegel Society of Great Britain continues.
Muller on the National Constitution Center Eric Muller blocs on the National Constitution Center over at the Conspiracy. Muller agrees with my observation that the centerpiece of the museum (an multimedia presentation combining a live actor with high tech visual images and audio) doesn't actually say much about the Constitution itself. He continues:
Saturday, August 30, 2003
Blogging from Philadelphia: Natural Law in a Secular Society
Herman Belz (University of Maryland) is next. He asks: is there a natural law, what is it, how is it to be made effective, and what does it have to do with religion, what is the metaphysical ground of natural law? Belz says that the significance of natural law is to constitute an order to human flourishing. Belz then quickly moves through a laundry list of recent natural law scholarship. Belz then shifts to the question whether “natural law” is a useful bit of terminology, quoting Russell Hittinger for the proposition that it is not. He then jumps again, talking about “natural law” as a theory of law and legal authority. Belz then argues for a position that directly contradicts Barnett, arguing that unless natural rights begin with moral premises, they lack moral standing. At this point, Belz’s argument is completely obscure; I simply had no idea what he might be trying to say.
Stephen A. Simon (University of Maryland) follows Belz. Simon disarmingly admits his status as a graduate student. He asks: “How do we recognize natural rights discourse, where do we find it, does it make a difference?” He signals that he we also address the question as to what role natural rights play in constitutional discourse? Simon complains that the Supreme Court frequently reduces rights to a balancing of interests and suggests that natural rights discourse offers alternative to this. He then turns to the word “liberty” in the 14th Amendment of the United States Constitution. Simon then turns to the question whether natural rights analysis is sufficiently determinate to guide particular constitutional decisions. Unfortunately, he runs out of time, just as things are starting to get interesting.
Karol Soltan (University of Maryland) follows. Soltan starts by making a distinction between the natural law of the natural law versus positivism debate. And natural law can also be a distinct body of law. What kind of law is this? (Soltan refers to the famous “natural law . . . is discovered” passage from Cicero’s De Re Publica.) Natural law, he says, is universal and unchanging. Soltan notes that these claims of universality and atemporality is seen as implausible. Soltan notes that the usual reason given here is epistemic but that Cicero’s claims are ontological. Natural law can be unchanging, even if opinion about its content changes. Soltan then briefly suggests a possible connection between natural law and basic human rights.
Christopher Wolfe (Marquette University) is the next speaker. Wolfe suggests four conception of natural law: (1) human beings have natures that direct how we should live—a very general and abstract but indeterminate conception; (2) there is a stable human nature that sets limits on the means by which humans can achieve a satisfactory existence; (3) a natural order of beings whose fulfillment consists in their realizing their innate potential (e.g. development of the human excellences or virtues); (4) natural law as understood by Aquinas, connected to the grasping of self-evidence first principles. Wolfe then suggests “natural law liberalism,” a common good the emphasizes the individuality and dignity of each individual, the plurality of ways of human life, and the importance of liberty.
Discussion: The initial discussion focuses on Barnett’s distinction between natural law and natural rights. George is particularly interested in the relationship between his account of the common good as the end of society, which does suggest the importance of liberty, but which George argues requires more than rights. George argues that common good is the key concept. Barnett does not disagree with the abstract formulation, and emphasizes that even on his libertarian view, rights are not the whole story. Barnett uses “rightful” and “wrongful” and “good” and “bad.” What law can do, Barnett argues, is prohibit wrongful activity. It can regulate but not prohibit rightful activity. Wolfe asks whether it would be a violation of the rights of others to disobey a conscription law? Barnett replies that conscription laws are themselves violations of natural rights. Barnett notes, however, that this goes to the substance of one’s theory of natural rights—as opposed to the general structure of natural rights, per se. George then throws this question on the floor: Can there be natural law if strict materialism is true? Unfortunately, this topic is dropped and the discussion turns to the question whether religion is necessary at what I would call a “rhetorical” or “psychological” level. George himself suggests that religion can open one to the idea of a moral order, or, in the case of some religions, close one to that idea. Sotiris Barber jumps with a question for George on whether this openness or closedness should be a criterion by which one selects are religion—a question that seemed to take the discussion far afield of the topic at hand.
Download of the Week Each Saturday, I recommend one of the new papers discussed on this blog from Sunday through Saturday as the download of the week. This week my recommendation is Mark Tushnet's Clarence Thomas's Black Nationalism, forthcoming in the Howard Law Journal. Tushnet is without doubt one of the most creative, thoughtful, and intellectually rigorous constitutional theorists working today. He was, of course, one of the most important members of the Critical Legal Studies movement, and he continues to write with unusual clarity and depth about the fundamental issues of constitutional theory. If you already know Mark's work, you have likely downloaded the paper already. If you do not, you are in for a treat.
Barnett on Natural Rights at APSA Today at the American Political Science Association meeting in Philadelphia, Randy Barnett is presenting The Imperative of Natural Rights in Today's World on SSRN. Here is the abstract:
Friday, August 29, 2003
Blogging from Philadelphia: Pluralism and Political Virtue
Mariah Ananda Zeisberg (Princeton) is next up. Her paper is titled Value Pluralism and Constitutional Meaning. Zeisberg’s paper was about one of the central questions in constitutional theory—whether the constitution should settle issues or actually facilitate disagreement. Zeisberg’s thesis is that the constitution should, at least with respect to some issues, allow issues to be unsettled, acting as a locus for dispute and disagreement. To illustrate the way in which constitutional meaning can be “ussettled,” Zeisberg emphasizes the phenomenon of constitutional conflict, giving as an example the tension between “national security” and “freedom of speech.” The constitution, she argues, is silent on the question of how these two constitutional commitments are to be reconciled. Zeisberg then argued that constitutional conflict leads to political benefits. For example, she argued that groups mobilize to make constitutional claims, leading to retheorizing of the underlying value conflicts. In other words, constitutional conflict can serve as a catalyst for the rethinking of important normative issues. Zeisberg then turns to what she calls the settlement thesis. The constitution, she argues, is not designed to settle disputes, but often is designed to enable or initiate them. (Equal protection, she argues, is an example.) The struggle to create constitutional meaning is a form of democratic politics.
Second, the distinction between core and ideal virtues—while valuable—misses the important mark. Sabl is trying to cope with disagreement about the virtues, but the core versus ideal distinction doesn’t track the distinction between virtues on which there is consensus and virtues on which there is dissensus. Some virtues in Sabl’s core will be the subject of disagreement, while others which are ideal will be the subject of agreement. A more apt distinction is between thick and thin theories of the virtues. Thin theories make weak assumptions. A thin theory of the virtues is one that can be affirmed by those who disagree on substantive political ideals. A thick theory of the virtues makes strong assumptions. It specifies those virtues are implied by the controversial assumptions of particular controversial political doctrines. A thin theory can become the subject of an overlapping consensus between those who disagree about political substance.
In the ensuing discussion period, many interesting points are made. Kochin disagrees with Sabl over the role of politicians, with Kochin disagreeing with Sabl’s characterization of citizens as those in need. Sabl addresses the question whether the instrumental view of political virtue is self-undermining, responding that he does not worry about this, since no one listens to political theorists. I ask Andy Sabl what he means by virtue, noting that much of his discussion could be about either action or attitude. Sabl gives a most unsatisfactory answer—saying that this is a problem, but that he doesn’t mean anything deep by virtue but rather is mere dispositions to act. O.K., but then nothing is added by the term “virtue.” Mere dispositions to act are simply actions. Without something deeper—without an account of the mechanism of disposition—there is no point to using “virtue” as the framework for discussion. Philip Pettit asks an eloquent and deeply smart question, which the panel does not quite seem to get. Later, Jacob Levy (University of Chicago) and Zeisberg have a good exchange.
In further discussion, William Galston makes a few points, one of which is that a functional account of virtue makes the specification of the end the determinant of what counts as a virtue. He emphasizes that Deweyian democracy and socialist democracy are not necessarily liberal democracy. His own account of the virtues, he argues, is based on a particular ideal of liberal democracy. Galston emphasizes that then the importance of virtue becomes an empirical question, quoting Kant’s famous remark about a nation of devils: if we get the institutions right, the distribution of virtues may not matter. Galston says he his own project was to show that Kant was wrong on empirical grounds. As Galston continues to speak, the audience ceases to fidget and listens with rapt attention. His remarks are so illuminating and penetrating that they bring the whole session together in a way that is rare and fine. Sabl responds, but his answer seems confused. He says that the empirical inquiries are value laden, but then talks as if Galston had said that what constitutes “liberal democracy” is an empirical question—missing the point of Galston’s remarks. The discussion continues a bit, with Galston noting that Sabl seems to refer to “equality” as a virtue, an obvious mistake. Sabl writes a promissory note for a vindication of his remarks on this last point.
New Papers on the Net Here is today's roundup:
Privacy Wrongs in Search of Remedies Hastings Law Journal, Vol. 54, 2003 Joel Reidenberg Fordham University School of Law Abstract:
Conference Announcement: Law, Loyalty, and Treason
Goode on the Whole Person Today at the University of Texas law faculty workshop series, Steve Goode does an internal workshop titled "Meeting of the Committe of the Whole Person."
Thursday, August 28, 2003
My Dinner with Dennis
Redemption But the Center is redeemed by the final exhibit, a wonderful set of life-sized statues of the signers of the Constitution. They are very well executed, and if you know their writings and speeches, they almost come to life. I was charmed by Madison, with his kind and scholarly face, and a bit put off by Hamilton, who was something of a dandy. Highly recommended.
And then . . . I almost always have great fun at academic gatherings. As you can probably guess, I love to go to the papers. Sometimes they are terrible, other times dull, but I almost always find panels that are very interesting. There are several at this year's APSA. But everyone knows that the real reason to go to an academic conference is for the conversations in the hall and the dinners with colleagues. I was very fortunate to be included in a small gathering hosted by the Dennis Patterson, the philosopher/academic lawyer from Rutgers Camden (Law) and Rutgers New Brunswick (Philosophy). Patterson is an extraordinary legal scholar. If you want an absolutely a treat try his Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. Pa. L. Rev. 335 (1988). Or even better, his book, Law and Truth, (Oxford University Press 1996). Dennis considers himself a post-modernist--a view against which I have rather powerful prejudices, but Dennis does it with real persuasive power and analytic rigor. The dinner and the conversation were a real delight.
Good night from Philadelphia!
Gardbaum on the Constitution in the Private Sphere Stephen Gardbaum (UCLA) has posted The "Horizontal Effect" of Constitutional Rights on SSRN. Here is the abstract:
Blogging from Philadelphia: Just War Theory Revisited
The first speaker is David Estlund (Brown, Philosophy):
Lawson on Wolfenstein & Workshops At Boston University's workshop series today, Gary Lawson, presents "Workshops and Wolfenstein." Lawson's is doing a metaworkshop, i.e. a law school workshop which is about law school workshops. Here is a taste of his very sensible paper:
Conference Announcement: The State of Play: Law, Games, and Virtual Worlds
Wednesday, August 27, 2003
Buck and Tusnet Stuart Buck comments on a recent paper by Mark Tushnet, here.
Barnett on Constitutional Theory & More on Posner's Review of Farber Over at the Conspiracy, Randy Barnett blogs on the value of a written constitution and in defense of originalism, here and here. And over at Discriminations, John Rosenberg responds to Posner's review of Farber's book on Lincoln's constitutiton.
Two from Tushnet Superstar constitutional theorist Mark Tushnet (Georgetown) has just posted two new papers on SSRN. Here is the low down:
New Papers on the Net Here are the new papers from SSRN:
Tuesday, August 26, 2003
Posner Reviews Lincolon's Constitution Richard Posner's review of Daniel Farber's book, Lincoln's Constitution is available on the New York Times website. Here is a taste:
Volokh on Religion in the Public Square Eugene Volokh had a marvelous post yesterday on the role of religious reasons in public policy. Highly recommended. Volokh is trying to get at an interesting and important distinction. His argument begins with an appealing intuition--that we should tolerate those who violate religious laws for religious reasons. Volokh uses religious toleration of Hindus as an example. Hindu religious practice violates is contrary to a variety of norms deeply embedded in the Judeo-Christian tradition, but very few Americans would support legal prohibition of these practices. But some Americans who would oppose criminalization of Hindu religious practice support criminalization of homosexuality--on the basis of religious commandments that seem relevantly similar to those which would seemingly support criminalization of Hindu religious practices. How can we explain this seeming anomaly? Volokh argues that our deeply held convictions about religious toleration for Hindus should lead to tolerate homosexuality. I urge you to read Eugene's excellent post, and I would suggest the following wrinkles and complexities:
--The Role of Religious Belief in Public Policy And here is another wrinkle. For many persons of deep religious faith, there is no line of separation between religious belief and beliefs about political morality. It is all part of a whole, and it is religious through and through. Of course, this varies from faith to faith and individual to individual. Some deeply religious individuals do separate their political beliefs from their religious beliefs, but many do not. If you believe in a comprehensive religious theory of the right and the good, then your stand on every public policy issue is religious. You believe that murder, theft, breaking contracts, etc., are all subject to legal sanction for reasons that rest on deep religious foundations.
--Contemporary Pluralism in the United States. But of course, in a modern democratic, pluralist, society, there are many different religions and religious views. In the United States, this pluralism has evolved over time. In the colonial period, religious pluralism was seen in terms of Catholics, Protestants, and Jews. (The faiths that slaves brought with them from Africa and that Native Americans already had were ignored by those who wielded power.) Today, the national polity is much more inclusive, with large numbers of Moslems, Buddhists, Hindus, Sikhs, Shintoists, Taoists, and adherents of dozens (or hundreds) of other faiths. And many Americans have deep belief systems that are not easily categorized as religious, not to mention agnostics, atheists, and those who simply do not think about these issues. The pluralism that characterizes contemporary American society is much broader and deeper than the kind of pluralism that emerged in Europe after the Wars of Religion and then migrated with religious dissidents to North America.
--Public Reason. In such a radically pluralistic society, there is a problem with basing public policy on religious reasons. In the colonial period, there was pluralism, but that pluralism was located in a Judeo-Christian context, in which the majority shared a set of religious texts (the Christian bible, which differed marginally from sect to sect, and the Old Testament which was shared (again with variations) by Jews as well). In this context, the ten commandments, for example, could be taken as common ground. (So engraving them on a courthouse wall would not be seen as a threat to religious liberty or the value of toleration.) "Public reason," the reason shared by all citizens, could include not just common sense, the shared lessons of history, and science--public reason could also include a common religious heritage. But today, this is not the case. If public policy is to be supported by public reason, then explicitly religious views are problematic. Even the most general and abstract religious propositions are controversial, once the relevant group includes Hindus, Buddhists, and atheists.
--An Ideal of Public Reason. So as a matter of political morality, a pluralist society needs an ideal of public reason. An ideal of public reason is not a law. An ideal of public reason is a standard of political morality. It helps to define an ideal of good citizenship, of what it means to be a good citizen in civic solidarity with fellow citizens who have radically different ideas about God and good. For us, for citizens of a pluralist democracy, the ideal of public reason is likely to require that public policies be justified (or at a minimum, justifiable) on the basis of public reasons. My own preference is what might be called an inclusive ideal of public reason. "Inclusive" in the sense that it says to citizens: bring all your reasons into the public square, both the deep reasons from your religious or philosophical beliefs about ultimate questions, and you shallow reasons--the values (like toleration, liberty, and equality) that are part of our public political culture.
Second, I think that Eugene's argument goes astray, because it implicitly assumes that persons of deep faith make a distinction between religious and secular reasons for public policy. Some do. Some don't. And for those who don't, Eugene's argument does not work. Because if you believe that all public policy must ultimately be justified on religious grounds, then it follows that toleration for homosexuality must be given a religious foundation.
20 Questions Crescat Sententia's latest installment of their interview feature is up. This week the legal theorist Randy Barnett answers 20 questions.
Call for Papers: The Jurisprudence of Justice Ginsburg
Workshop at Florida State At Florida State, J.B. Ruhl does an internal workshop titled Methodology and the Endangered Species Act.
Monday, August 25, 2003
New Weekend Features Two regular features have been added to Legal Theory Blog. On Saturday, there is the Download of the Week, a recommendation from all the downloadable papers posted from Sunday through Saturday. On Sunday, I will post the Legal Theory Calendar, which will highlight workshops and conferences from the upcoming week. (Yesterday's calendar features workshops at Florida State, Boston University, and the University of Texas.) If you would like your event listed in the calendar or if you can send me information on a workshop/colloquium schedule, please email: lsolum AT sandiego DOT edu.
Constitutional Legitimacy Will Baude of Crescat Sententia and PG of Half the Sins of Mankind have been discussing the topic of constitutional legitimacy. Why should we regard ourselves as bound by a constitution written by the dead hands of generations long past? This question is particularly pressing for constitutional theories that incorporate originalist theories of constitutional interpretation, because such theories privilege the intentions or understandings of the generation that ratified the Constitution (or provisions thereof). Contemporary ratification theories such as that advanced by Justice Brennan (and in a more sophisticated form by Jack Balkin and Sandy Levinson) avoid this problem while incurring others. So what makes a constitution legitimate? Before answering let's get this bit straight:
One more distinction: legitimacy and justice (or overall rightness) are distinct. A constitution that is just may be illegitimate and vice versa--depending on one's theory of legitimacy and the facts.
--Reliability. This view associates constitutional legitimacy with the tendency of the system to produce just outcomes. A reliability theory maintains that a constitutional system if legitimate if it meets a threshold requirement for the likelihood that it will produce just outcomes. In contemporary American constitutional theory, Randy Barnett is associated with this view.
--Comparative legitimacy. This view maintains that a system with a written constitution is legitimate in comparison with the alternatives. For example, the dead-hand problem may be real, but if the alternative is a dictatorship of unelected judges or unconstrained legislative power, following the original meaning of a written constitution may simply be the least-bad alternative.
New Papers on the Net Here is today's roundup:
Sunday, August 24, 2003
Three by Kaplow Louis Kaplow (Harvard) has three new papers up on SSRN:
The Legal Theory Calendar I am experimenting with some weekend features for Legal Theory Blog. Yesterday, I put up the first Download of the Week. Today, I am trying out Legal Theory Calendar. As the academic year is gearing up, I will be posting again on workshops, conferences, and other events of interest to the readers of this blog. My custom has been to post on an event the morning of the day it happens, but starting this week, I will also post a Sunday Calendar, with a summary of the events for the upcoming week. Here is the first installment: