This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory—why is religion singled out for preferential treatment in both law and public discourse? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not? In Why Tolerate Religion?, Brian Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.
{"title":"Why Tolerate Religion?","authors":"B. Leiter","doi":"10.5860/choice.50-4946","DOIUrl":"https://doi.org/10.5860/choice.50-4946","url":null,"abstract":"This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory—why is religion singled out for preferential treatment in both law and public discourse? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not? In Why Tolerate Religion?, Brian Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125091921","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Much scholarly attention has been paid recently to the optimal design of legal norms as constituting either clear-cut “rules�? or open-ended “standards.�? The reemergence of formalist thought across schools and ideologies calling to reinforce a more rule-based regime in various legal fields has been increasingly challenging the substantive, contextual jurisprudence that had largely dominated the twentieth century. The study of legal standards versus rules in property law remains, however, quite limited, focusing mainly on specific aspects such as the remedy-based property rule/liability rule discourse, the debate whether the right to exclude represents the inherent “core�? of property rights, and the renewed interest in the structural numerus clausus principle. This Article offers an innovative, comprehensive analysis of the ways in which legal standards operate in property law. It identifies the distinctive manner in which the chief justifications for standards, i.e. incompleteness of rights and enhancement of substantive value-based design and interpretation of norms, play out in property law. Cutting across conventional public law / private law distinctions, by referring to various standards such as “trade usage,�? “custom,�? “reasonableness,�? “abuse of rights,�? or “public use,�? the Article shows that legal standards hinge prominently on the institutional mechanisms by which such norms are crafted and enforced, and identifies the conditions under which property standards may outperform hard-edged rules. Considering the unique trait of property rights as implicating numerous and often indefinite interest holders, and hence the need for broad-based coordination in designing the content of property legal standards over time, the Article looks at the ways in which such standards can be filled with content by either bottom-up norms such as group-based customs, values, and understandings, or rather by top-down bodies such as courts. In essence, in order for property legal standards to work effectively, bottom-up and top-down decisionmaking institutions, working exclusively or conjointly, must systemically guide actors through the often inevitable incompleteness of rights and the dynamic nature of value-based norm-setting, without bringing property to the brink of excessive instability and insecurity that have led to the backlash of new formalism.
{"title":"The Standards of Property","authors":"Amnon Lehavi","doi":"10.2139/ssrn.1467087","DOIUrl":"https://doi.org/10.2139/ssrn.1467087","url":null,"abstract":"Much scholarly attention has been paid recently to the optimal design of legal norms as constituting either clear-cut “rules�? or open-ended “standards.�? The reemergence of formalist thought across schools and ideologies calling to reinforce a more rule-based regime in various legal fields has been increasingly challenging the substantive, contextual jurisprudence that had largely dominated the twentieth century. The study of legal standards versus rules in property law remains, however, quite limited, focusing mainly on specific aspects such as the remedy-based property rule/liability rule discourse, the debate whether the right to exclude represents the inherent “core�? of property rights, and the renewed interest in the structural numerus clausus principle. This Article offers an innovative, comprehensive analysis of the ways in which legal standards operate in property law. It identifies the distinctive manner in which the chief justifications for standards, i.e. incompleteness of rights and enhancement of substantive value-based design and interpretation of norms, play out in property law. Cutting across conventional public law / private law distinctions, by referring to various standards such as “trade usage,�? “custom,�? “reasonableness,�? “abuse of rights,�? or “public use,�? the Article shows that legal standards hinge prominently on the institutional mechanisms by which such norms are crafted and enforced, and identifies the conditions under which property standards may outperform hard-edged rules. Considering the unique trait of property rights as implicating numerous and often indefinite interest holders, and hence the need for broad-based coordination in designing the content of property legal standards over time, the Article looks at the ways in which such standards can be filled with content by either bottom-up norms such as group-based customs, values, and understandings, or rather by top-down bodies such as courts. In essence, in order for property legal standards to work effectively, bottom-up and top-down decisionmaking institutions, working exclusively or conjointly, must systemically guide actors through the often inevitable incompleteness of rights and the dynamic nature of value-based norm-setting, without bringing property to the brink of excessive instability and insecurity that have led to the backlash of new formalism.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121284788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’. The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.
{"title":"England and the Rediscovery of Constitutional Faith","authors":"Matthew Zagor","doi":"10.2139/ssrn.1445138","DOIUrl":"https://doi.org/10.2139/ssrn.1445138","url":null,"abstract":"England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’. The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134240081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This short essay, which is essentially a comment on a recent article by Armin von Bogdandy (see footnote 5), discusses why the understanding of Public law qua "legal science" persists in mainland Europe. The essay argues that this is to be welcomed.
这篇短文实质上是对阿明·冯·博格丹迪(Armin von Bogdandy)最近的一篇文章的评论(见脚注5)，讨论了为什么公法作为“法学”的理解在欧洲大陆持续存在。这篇文章认为这是值得欢迎的。
{"title":"The Indelible Science of Law","authors":"A. Somek","doi":"10.2139/ssrn.1394425","DOIUrl":"https://doi.org/10.2139/ssrn.1394425","url":null,"abstract":"This short essay, which is essentially a comment on a recent article by Armin von Bogdandy (see footnote 5), discusses why the understanding of Public law qua \"legal science\" persists in mainland Europe. The essay argues that this is to be welcomed.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134380889","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2009-05-28DOI: 10.1093/ACPROF:OSO/9780199582068.003.0010
Ralf Poscher
The work of Robert Alexy is closely associated with the “principle theory”. For Alexy himself, the principle theory represents the heart of his theoretical work, around which most of his publications are organized. In Alexy’s work, and in the work of his students, the label “principle theory” suggests theoretical unity. Despite this impression of unity, the principle theory is far more multilayered and multifaceted than the “unitary” label would suggest. The critique of Alexy’s principle theory, which is the topic of this article, has two objectives. First, I distinguish between the different types of theory which have found refuge under the unitary label. By clarifying the different theoretical aspirations pursued by proponents of the principle theory, I systematize these different theoretical and doctrinal efforts which are often not clearly separated in the debate. The critique aims to offer a framework within which to situate the different arguments and criticisms, so that it becomes clearer which type, level or aspect of principle theory the argument is about. This is the constructive part of the critique. Second, the critique aims to evaluate the theoretical and doctrinal positions and achievements of the various principle theories on each of the levels identified. This analysis is for the most part critical. The claim is that the principle theory is wrong on most counts and misunderstands itself by confusing the different levels of its theoretical and doctrinal aspirations. At its origins, as put forward by Josef Esser and Ronald Dworkin in the framework of a theory about the concept of law, it has its merit in rejecting the simplifications of positivist theories of adjudication. A defense of the role of specifically legal principles in the process of adjudication against arguments to the contrary from Larry Alexander and Ken Kress is offered. But the acceptance of legal principles does not entail a validity relation between the law and morality as supported by Alexy. As a theory of norms, the principle theory fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption under rules or the balancing of principles. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights as it is developed in Alexy’s main work “A Theory of Constitutional Rights”. The most promising aspect of Alexy’s principle theory could be its contribution to a more comprehensive theory of legal argumentation.
{"title":"The Principle Theory: How Many Theories and What is Their Merit?","authors":"Ralf Poscher","doi":"10.1093/ACPROF:OSO/9780199582068.003.0010","DOIUrl":"https://doi.org/10.1093/ACPROF:OSO/9780199582068.003.0010","url":null,"abstract":"The work of Robert Alexy is closely associated with the “principle theory”. For Alexy himself, the principle theory represents the heart of his theoretical work, around which most of his publications are organized. In Alexy’s work, and in the work of his students, the label “principle theory” suggests theoretical unity. Despite this impression of unity, the principle theory is far more multilayered and multifaceted than the “unitary” label would suggest. The critique of Alexy’s principle theory, which is the topic of this article, has two objectives. First, I distinguish between the different types of theory which have found refuge under the unitary label. By clarifying the different theoretical aspirations pursued by proponents of the principle theory, I systematize these different theoretical and doctrinal efforts which are often not clearly separated in the debate. The critique aims to offer a framework within which to situate the different arguments and criticisms, so that it becomes clearer which type, level or aspect of principle theory the argument is about. This is the constructive part of the critique. Second, the critique aims to evaluate the theoretical and doctrinal positions and achievements of the various principle theories on each of the levels identified. This analysis is for the most part critical. The claim is that the principle theory is wrong on most counts and misunderstands itself by confusing the different levels of its theoretical and doctrinal aspirations. At its origins, as put forward by Josef Esser and Ronald Dworkin in the framework of a theory about the concept of law, it has its merit in rejecting the simplifications of positivist theories of adjudication. A defense of the role of specifically legal principles in the process of adjudication against arguments to the contrary from Larry Alexander and Ken Kress is offered. But the acceptance of legal principles does not entail a validity relation between the law and morality as supported by Alexy. As a theory of norms, the principle theory fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption under rules or the balancing of principles. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights as it is developed in Alexy’s main work “A Theory of Constitutional Rights”. The most promising aspect of Alexy’s principle theory could be its contribution to a more comprehensive theory of legal argumentation.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114075827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses the terms under which discussions of legal (i.e. constitutional and statutory) interpretation take place, advocating a shift away from “originalism” as our axis of debate to “intentionalism.” I argue that originalism has far more in common with its foes than has been generally recognized, and that intentionalism better implicates the most fundamental aspect of such methods of interpretation, regarding the existence, nature, and importance of intentions. I assert that originalists, just as much as many traditionally considered opposed to them, are intentionalists because they rely on mental state theories of intention. Tracking debates in the philosophy of action and literary theory, I also suggest that it is helpful to talk of intentionalism because it more explicitly relates legal concerns to the interpretive concerns common to these other fields. My approach also engages the work of others who, in various ways, have earlier discussed in the legal literature the broader context and implications of intentionalism, and especially that of Heidi Hurd on the ubiquity of intentionalism in legal interpretation. Although I do not here limn or endorse a specific interpretive methodology, my conclusions do extend to asserting that originalism and textualism, instead of being complementary, are at direct odds with one another – with originalism being a form of intentionalism and textualism explicitly rejecting intentionalism.
{"title":"Intention and Interpretation: Towards A Meta-Theory of Legal Hermenuetics","authors":"D. Green","doi":"10.2139/ssrn.1404203","DOIUrl":"https://doi.org/10.2139/ssrn.1404203","url":null,"abstract":"This article addresses the terms under which discussions of legal (i.e. constitutional and statutory) interpretation take place, advocating a shift away from “originalism” as our axis of debate to “intentionalism.” I argue that originalism has far more in common with its foes than has been generally recognized, and that intentionalism better implicates the most fundamental aspect of such methods of interpretation, regarding the existence, nature, and importance of intentions. I assert that originalists, just as much as many traditionally considered opposed to them, are intentionalists because they rely on mental state theories of intention. Tracking debates in the philosophy of action and literary theory, I also suggest that it is helpful to talk of intentionalism because it more explicitly relates legal concerns to the interpretive concerns common to these other fields. My approach also engages the work of others who, in various ways, have earlier discussed in the legal literature the broader context and implications of intentionalism, and especially that of Heidi Hurd on the ubiquity of intentionalism in legal interpretation. Although I do not here limn or endorse a specific interpretive methodology, my conclusions do extend to asserting that originalism and textualism, instead of being complementary, are at direct odds with one another – with originalism being a form of intentionalism and textualism explicitly rejecting intentionalism.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132692959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article identifies major characteristics of how public international law has been endorsed by European legal scholars. Prominent among these is the repeated effort to pinpoint the deficiency of public international law as it stands and to suggest improvements. The article tries to identify a chain of substitutions with regard to what is taken to be the core problem. It can be shown how attempts to overcome one reveal another. The chain of substitution, reconstructed in this article, begins with decentralization and results in the realization that public international law is inadequate from a constitutional point of view. Not surprisingly, the constitutionalization of public international law becomes an issue. However, it turns out that some current ideas regarding the constitutionalization of public international law, rather than taking constitution-making seriously, appear to be idealistic refractions of the real absorption of legality by administrative processes. Rather than offering a solution, they may very well be part of the constitutional deficiency that they claim to resolve.
{"title":"From the Rule of Law to the Constitutionalist Makeover: Changing European Conceptions of Public International Law","authors":"A. Somek","doi":"10.2139/SSRN.1397249","DOIUrl":"https://doi.org/10.2139/SSRN.1397249","url":null,"abstract":"The article identifies major characteristics of how public international law has been endorsed by European legal scholars. Prominent among these is the repeated effort to pinpoint the deficiency of public international law as it stands and to suggest improvements. The article tries to identify a chain of substitutions with regard to what is taken to be the core problem. It can be shown how attempts to overcome one reveal another. The chain of substitution, reconstructed in this article, begins with decentralization and results in the realization that public international law is inadequate from a constitutional point of view. Not surprisingly, the constitutionalization of public international law becomes an issue. However, it turns out that some current ideas regarding the constitutionalization of public international law, rather than taking constitution-making seriously, appear to be idealistic refractions of the real absorption of legality by administrative processes. Rather than offering a solution, they may very well be part of the constitutional deficiency that they claim to resolve.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"266 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122932875","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay responds to Stephen Holmes’ Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of “public liberty” by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right - a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.This Essay analyzes a number of Holmesian concepts through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA). In Part I, I describe the background of FISA, the National Security Agency’s (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory “fix” that has expired, and the FISA Amendments Act of 2008, which remains in effect. In Part II, I turn to an analysis of the challenges to private and public liberty posed by the NSA’s surveillance. I organize this Part around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past. Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government’s performance by crafting new informational and deliberative structures for it.
{"title":"Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes' Jorde Lecture","authors":"P. Schwartz","doi":"10.15779/Z389D80","DOIUrl":"https://doi.org/10.15779/Z389D80","url":null,"abstract":"This Essay responds to Stephen Holmes’ Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of “public liberty” by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right - a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.This Essay analyzes a number of Holmesian concepts through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA). In Part I, I describe the background of FISA, the National Security Agency’s (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory “fix” that has expired, and the FISA Amendments Act of 2008, which remains in effect. In Part II, I turn to an analysis of the challenges to private and public liberty posed by the NSA’s surveillance. I organize this Part around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past. Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government’s performance by crafting new informational and deliberative structures for it.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115336615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Distributive justice plays a starring role in many fundamental tax policy debates, from the marginal rate structure to the choice of base to the propriety of wealth transfer taxes. In contrast, current tax scholarship on the charitable tax subsidies generally either ignores or explicitly disavows distributive justice concerns. Instead, it focuses on the efficiency and pluralism-enhancing advantages of having charities provide public goods instead of or in addition to the government. While identifying these advantages is a necessary and important contribution to our understanding of charitable giving policy, avoidance of distributive justice concerns ignores the very purpose of charity: voluntary redistribution. After all, it's called the charitable deduction, not the public goods deduction. As a result, the current body of work on the charitable tax subsidies is incomplete: It purposely under-theorizes "the good" in order to avoid making value judgments about which projects should be subsidized. Although this sounds appealing, completely avoiding such judgments is both impossible and counter-productive. Current scholarship thus over under-theorizes the good, creating confusion about the charitable tax subsidies in both theory and practice. Explicitly addressing distributive justice - in addition to pluralism and efficiency - will enhance our understanding of the subsidies for three reasons. First, existing scholarship - which generally ignores distributive justice issues - is incomplete and inconsistent for so doing. It is incomplete because it does not adequately identify which projects deserve a subsidy; it is inconsistent because it implicitly contains value judgments that have distributive justice implications but that are unacknowledged (and often disavowed) by their proponents. Second, popular criticisms of the charitable tax subsidies raise distributive justice issues that have not been adequately addressed. And lastly, the law governing the charitable tax subsidies is itself confused on the role of distributive justice. Extending our understanding of the subsidies in this manner has three benefits. First, it will help the efficiency- and pluralism-minded scholars better address how to structure the tax subsidies to best promote those benefits. Second, a better understanding of distributive justice will help us assess existing justice-related criticisms of the subsidies. And lastly, because our society currently spends a great deal of resources subsidizing charity, such a discussion will help us allocate our resources in a more systematic fashion.
{"title":"Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice","authors":"M. Fleischer","doi":"10.2139/ssrn.1348772","DOIUrl":"https://doi.org/10.2139/ssrn.1348772","url":null,"abstract":"Distributive justice plays a starring role in many fundamental tax policy debates, from the marginal rate structure to the choice of base to the propriety of wealth transfer taxes. In contrast, current tax scholarship on the charitable tax subsidies generally either ignores or explicitly disavows distributive justice concerns. Instead, it focuses on the efficiency and pluralism-enhancing advantages of having charities provide public goods instead of or in addition to the government. While identifying these advantages is a necessary and important contribution to our understanding of charitable giving policy, avoidance of distributive justice concerns ignores the very purpose of charity: voluntary redistribution. After all, it's called the charitable deduction, not the public goods deduction. As a result, the current body of work on the charitable tax subsidies is incomplete: It purposely under-theorizes \"the good\" in order to avoid making value judgments about which projects should be subsidized. Although this sounds appealing, completely avoiding such judgments is both impossible and counter-productive. Current scholarship thus over under-theorizes the good, creating confusion about the charitable tax subsidies in both theory and practice. Explicitly addressing distributive justice - in addition to pluralism and efficiency - will enhance our understanding of the subsidies for three reasons. First, existing scholarship - which generally ignores distributive justice issues - is incomplete and inconsistent for so doing. It is incomplete because it does not adequately identify which projects deserve a subsidy; it is inconsistent because it implicitly contains value judgments that have distributive justice implications but that are unacknowledged (and often disavowed) by their proponents. Second, popular criticisms of the charitable tax subsidies raise distributive justice issues that have not been adequately addressed. And lastly, the law governing the charitable tax subsidies is itself confused on the role of distributive justice. Extending our understanding of the subsidies in this manner has three benefits. First, it will help the efficiency- and pluralism-minded scholars better address how to structure the tax subsidies to best promote those benefits. Second, a better understanding of distributive justice will help us assess existing justice-related criticisms of the subsidies. And lastly, because our society currently spends a great deal of resources subsidizing charity, such a discussion will help us allocate our resources in a more systematic fashion.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127540582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this brief Idea piece, I describe how the labor theory of property rights associated with John Locke might apply to projects such as WikiPedia, which aggregate many small contributions by dispersed contributors. These works of "collaborative creativity" represent very significant investments of time and resources, yet do not fit comfortably within the individually-oriented framework of traditional Lockean analysis. Locke's central insight - that laboring on unowned resources ought (with exceptions and qualifications) to justify appropriation - suggests the desirability of granting some form of property interest over the products of collaborative creativity. I also explore a few practical issues that would have to be resolved to implement such a right.
{"title":"Locke for the Masses: Property Rights and the Products of Collective Creativity","authors":"R. Merges","doi":"10.2139/SSRN.1323408","DOIUrl":"https://doi.org/10.2139/SSRN.1323408","url":null,"abstract":"In this brief Idea piece, I describe how the labor theory of property rights associated with John Locke might apply to projects such as WikiPedia, which aggregate many small contributions by dispersed contributors. These works of \"collaborative creativity\" represent very significant investments of time and resources, yet do not fit comfortably within the individually-oriented framework of traditional Lockean analysis. Locke's central insight - that laboring on unowned resources ought (with exceptions and qualifications) to justify appropriation - suggests the desirability of granting some form of property interest over the products of collaborative creativity. I also explore a few practical issues that would have to be resolved to implement such a right.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116843256","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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