The subject of this paper is Blackstone's famous declaratory theory of law - the claim that judges find the law, rather than make it. Blackstone's claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the brooding omnipresence view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone's theory fails for other reasons - namely, because his account does not square well with law practice as it exists and because his distinction between legislative lawmaking and judicial declaration is ultimately unsustainable. Despite its faults, Blackstone's account of judging remains popular in some circles - particularly among evangelicals. The patrician Oxford law professor seems an unlikely hero for American evangelicalism, which is a fundamentally populist movement. Nevertheless, I argue that evangelicals have their reasons for admiring Blackstone. Historically, the assault on Blackstone in American law schools coincided with the academic movement to secularize American law. Philosophically, Blackstone's moral realism and epistemic optimism sit well with evangelical habits of mind. While Blackstone's moral realism may be appealing to orthodox Christians (including evangelicals), his account of law ought to be unacceptable on the basis of their own theological presuppositions, because it represents a deficient understanding of traditional Christian teaching about creation. The traditional Christian theological understanding of creation emphasizes the world as a part of the larger story of God's purposes. This understanding does not depend on any particular account of how the world came to be the way it is, but it has some surprising implications for how we understand the human activity of lawmaking. Indeed, it helps illuminate why accounts of law that treat law as either merely found or merely made have proven unsatisfactory.
本文的主题是布莱克斯通著名的法律宣告理论——即法官发现法律，而不是制定法律。黑石集团的主张在法律界被普遍拒绝，通常是因为黑石集团(错误地)与伊利、Guaranty Trust和南太平洋诉詹森(Southern Pacific Co. v. Jensen)等案件中被拒绝的那种令人担忧的无所不在的法律观点联系在一起。我认为，黑石的理论之所以失败，还有其他原因——也就是说，因为他的描述与现有的法律实践不太相符，因为他对立法和司法声明的区分最终是不可持续的。尽管存在缺陷，但黑石对评判的描述在某些圈子里仍然很受欢迎——尤其是在福音派中。这位出身贵族的牛津大学法学教授似乎不太可能成为美国福音主义的英雄，因为福音主义从根本上说是一种民粹主义运动。然而，我认为福音派教徒有他们崇拜黑石的理由。从历史上看，美国法学院对黑石的攻击与美国法律世俗化的学术运动同时发生。在哲学上，布莱克斯通的道德现实主义和认知乐观主义与福音派的思维习惯非常吻合。虽然布莱克斯通的道德现实主义可能对正统基督徒(包括福音派)有吸引力，但基于他们自己的神学预设，他对律法的解释应该是不可接受的，因为它代表了对传统基督教关于创世的教义的理解不足。传统的基督教神学对创造的理解强调世界是上帝旨意的更大故事的一部分。这种理解并不依赖于对世界是如何形成的任何特定描述，但它对我们如何理解人类立法活动有一些令人惊讶的影响。事实上，它有助于阐明为什么将法律仅仅视为发现或创造的法律被证明是不令人满意的。
{"title":"Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory","authors":"William S. Brewbaker","doi":"10.2139/ssrn.899103","DOIUrl":"https://doi.org/10.2139/ssrn.899103","url":null,"abstract":"The subject of this paper is Blackstone's famous declaratory theory of law - the claim that judges find the law, rather than make it. Blackstone's claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the brooding omnipresence view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone's theory fails for other reasons - namely, because his account does not square well with law practice as it exists and because his distinction between legislative lawmaking and judicial declaration is ultimately unsustainable. Despite its faults, Blackstone's account of judging remains popular in some circles - particularly among evangelicals. The patrician Oxford law professor seems an unlikely hero for American evangelicalism, which is a fundamentally populist movement. Nevertheless, I argue that evangelicals have their reasons for admiring Blackstone. Historically, the assault on Blackstone in American law schools coincided with the academic movement to secularize American law. Philosophically, Blackstone's moral realism and epistemic optimism sit well with evangelical habits of mind. While Blackstone's moral realism may be appealing to orthodox Christians (including evangelicals), his account of law ought to be unacceptable on the basis of their own theological presuppositions, because it represents a deficient understanding of traditional Christian teaching about creation. The traditional Christian theological understanding of creation emphasizes the world as a part of the larger story of God's purposes. This understanding does not depend on any particular account of how the world came to be the way it is, but it has some surprising implications for how we understand the human activity of lawmaking. Indeed, it helps illuminate why accounts of law that treat law as either merely found or merely made have proven unsatisfactory.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124761673","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 Law & Economics analysis of racial discrimination has impoverished our thinking about race. This legacy comes from its conclusion, reached early in its development, that laws prohibiting racial discrimination were unnecessary and wasteful. This controversial policy recommendation reflected an oversight, which, in retrospect, seems obvious, but which over more than three decades remained unnoticed by both adherents and opponents. Law & Economics built its flawed analysis of discrimination on the concept of "psychic" income. White workers and employers would experience psychic losses of income if forced by antidiscrimination laws to forego their preference for nonassociation with black workers. This analysis and the ensuing critical commentary failed to consider that black workers might experience psychic losses as victims of discrimination. When their losses and gains are considered, the economic analysis changes fundamentally. This error imposed real costs, because within the civil rights community, the original conclusion reached by Law & Economics, (which flatly contradicted the historical record), discredited economic analysis of discrimination. Other schools of economics reject the troubling assumptions that led Law & Economics astray, but the potential insights offered by these other schools have been lost. Business ownership accounts for too much wealth and power for real equality to exist unless a substantial black entrepreneurial group develops. Because discrimination has not been and cannot be prohibited in private commercial transactions, this group remains underdeveloped. Spurring the growth of this group requires interventions that meld seamlessly with existing market arrangements. Such a melding depends upon a sophisticated appreciation of how race affects market activity. We currently lack such an understanding, and without more attention to economic analysis, we cannot develop one, and real equality will remain a chimera.
{"title":"Poisoning the Well: Law & Economics, Business Development, and Racial Inequality","authors":"Robert Suggs","doi":"10.2139/ssrn.572963","DOIUrl":"https://doi.org/10.2139/ssrn.572963","url":null,"abstract":"The Law & Economics analysis of racial discrimination has impoverished our thinking about race. This legacy comes from its conclusion, reached early in its development, that laws prohibiting racial discrimination were unnecessary and wasteful. This controversial policy recommendation reflected an oversight, which, in retrospect, seems obvious, but which over more than three decades remained unnoticed by both adherents and opponents. Law & Economics built its flawed analysis of discrimination on the concept of \"psychic\" income. White workers and employers would experience psychic losses of income if forced by antidiscrimination laws to forego their preference for nonassociation with black workers. This analysis and the ensuing critical commentary failed to consider that black workers might experience psychic losses as victims of discrimination. When their losses and gains are considered, the economic analysis changes fundamentally. This error imposed real costs, because within the civil rights community, the original conclusion reached by Law & Economics, (which flatly contradicted the historical record), discredited economic analysis of discrimination. Other schools of economics reject the troubling assumptions that led Law & Economics astray, but the potential insights offered by these other schools have been lost. Business ownership accounts for too much wealth and power for real equality to exist unless a substantial black entrepreneurial group develops. Because discrimination has not been and cannot be prohibited in private commercial transactions, this group remains underdeveloped. Spurring the growth of this group requires interventions that meld seamlessly with existing market arrangements. Such a melding depends upon a sophisticated appreciation of how race affects market activity. We currently lack such an understanding, and without more attention to economic analysis, we cannot develop one, and real equality will remain a chimera.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125675076","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}
Summary: 1) Introduction; 2) War as duel vs. war as execution of justice; 3) Bilateral justice of war vs. invincible ignorance; 4) Pre-emptive self-defence vs. necessary self-defence; 5) The making of peace: restitution-punishment vs. conquest-empire; 6) Civilization vs. barbarism and the common law of mankind; and 7) Conclusion.
{"title":"Political Theory and Jurisprudence in Gentili's De Iure Belli: The Great Debate between 'Theological' and 'Humanist' Perspectives from Vitoria to Grotius","authors":"D. Panizza","doi":"10.2139/ssrn.871754","DOIUrl":"https://doi.org/10.2139/ssrn.871754","url":null,"abstract":"Summary: 1) Introduction; 2) War as duel vs. war as execution of justice; 3) Bilateral justice of war vs. invincible ignorance; 4) Pre-emptive self-defence vs. necessary self-defence; 5) The making of peace: restitution-punishment vs. conquest-empire; 6) Civilization vs. barbarism and the common law of mankind; and 7) Conclusion.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131806938","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 challenges the politically correct theory advanced in a 1989 article by Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” Professor Schaaf argued that large parts of the U.S. Constitution were based on the Great Law of Peace, the founding document of the Iroquois Confederacy. This article points to the lack of primary authority supporting such a counterintuitive proposition and questions the likelihood that Iroquois principles could have silently influenced American founders. Finally, the article questions whether it is desirable to try to further the status of American Indian nations by promulgating a theory that is appealing, but ultimately easily refuted.
{"title":"The Imaginary Connection between the Great Law of Peace and the United States Constitution: A Reply to Professor Schaaf","authors":"E. Jensen","doi":"10.2307/20068679","DOIUrl":"https://doi.org/10.2307/20068679","url":null,"abstract":"This article challenges the politically correct theory advanced in a 1989 article by Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” Professor Schaaf argued that large parts of the U.S. Constitution were based on the Great Law of Peace, the founding document of the Iroquois Confederacy. This article points to the lack of primary authority supporting such a counterintuitive proposition and questions the likelihood that Iroquois principles could have silently influenced American founders. Finally, the article questions whether it is desirable to try to further the status of American Indian nations by promulgating a theory that is appealing, but ultimately easily refuted.","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131356450","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}
There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the "preferential option for the poor" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a case study, it proposes dialogue between Catholicism and complementary secular thought, including standpoint theory, outsider methodology, and law and economics to explore possibilities for more effectively ensuring justice for the poor and marginalized. (An earlier version of this article was presented at Law, Culture and the Humanities at Georgetown Law Center in 2007.)
{"title":"Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor","authors":"Russell Powell","doi":"10.2139/ssrn.1111713","DOIUrl":"https://doi.org/10.2139/ssrn.1111713","url":null,"abstract":"There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the \"preferential option for the poor\" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a case study, it proposes dialogue between Catholicism and complementary secular thought, including standpoint theory, outsider methodology, and law and economics to explore possibilities for more effectively ensuring justice for the poor and marginalized. (An earlier version of this article was presented at Law, Culture and the Humanities at Georgetown Law Center in 2007.)","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115327883","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}
Recently, the positive theory of rational choice has come under attack from experimental psychologists and economists. Their experimental results, gathered together under the banner of behavioral analysis, show that the maximizing model of rational choice often does not provide a very accurate account of how agents actually choose. Moreover, the departures from the model appear systematic rather than random, suggesting that something other than maximization is going on. However, the general tenor of these studies is not to question the normative ideal of maximization. Rather, the departures from the standard account of rational choice are typically characterized, and criticized, as failures to be rational. Agents are only human beings, after all, and human beings are subject to the limitations that must, inevitably and systematically, arise out of personal bias, limits on the salience and availability of important information, and the distorting effects of how a given problem is framed. Thus, real world agents are only, it is said, capable of a bounded rationality, using rules of thumb and various heuristics (sometimes helpful, sometimes not) rather than the fully fledged maximizing rationality that is still largely accepted as the ideal for rational choice. This paper argues that, for many decision-making problems, the normative account of rationality that animates rational choice theory, and not just the positive account that is criticized by the behaviorists, is deficient, even as a theory of ideally rational behavior, and that an alternative account of rational choice is required. Rationality, it is suggested, provides for an ordered particularity, including particular decisions, but the notion of an ordering that informs this alternative account of ideally rational behavior, and which is more appropriate in some decision-making contexts, including many legal ones, is very different from the idea of an ordering that informs the standard account within rational choice theory. The latter, which is closely allied to the idea of maximization, remains largely quantitative and single-minded in its orientation, this despite the pluralism of motivations that it appears to be willing and able to accommodate within its seemingly minimalist structure. The alternative account is more qualitative, or categorical (although not absolute), offering a conception of a rational ordering of particularity that is more allied to the idea of an understanding or interpretation (under rules or principles) than it is to maximization. In this paper this alternative conception of rationality is referred to as categorical reason. The real challenge for the paper, however, is not so much to articulate two alternative accounts of rationality, but to begin to make each accessible to the other within some common intellectual framework. While rational choice theory provides a useful and precise set of tools for beginning this process of achieving mutual understanding, the pap
{"title":"Rational Choice and Categorical Reason","authors":"B. Chapman","doi":"10.2139/ssrn.315799","DOIUrl":"https://doi.org/10.2139/ssrn.315799","url":null,"abstract":"Recently, the positive theory of rational choice has come under attack from experimental psychologists and economists. Their experimental results, gathered together under the banner of behavioral analysis, show that the maximizing model of rational choice often does not provide a very accurate account of how agents actually choose. Moreover, the departures from the model appear systematic rather than random, suggesting that something other than maximization is going on. However, the general tenor of these studies is not to question the normative ideal of maximization. Rather, the departures from the standard account of rational choice are typically characterized, and criticized, as failures to be rational. Agents are only human beings, after all, and human beings are subject to the limitations that must, inevitably and systematically, arise out of personal bias, limits on the salience and availability of important information, and the distorting effects of how a given problem is framed. Thus, real world agents are only, it is said, capable of a bounded rationality, using rules of thumb and various heuristics (sometimes helpful, sometimes not) rather than the fully fledged maximizing rationality that is still largely accepted as the ideal for rational choice. This paper argues that, for many decision-making problems, the normative account of rationality that animates rational choice theory, and not just the positive account that is criticized by the behaviorists, is deficient, even as a theory of ideally rational behavior, and that an alternative account of rational choice is required. Rationality, it is suggested, provides for an ordered particularity, including particular decisions, but the notion of an ordering that informs this alternative account of ideally rational behavior, and which is more appropriate in some decision-making contexts, including many legal ones, is very different from the idea of an ordering that informs the standard account within rational choice theory. The latter, which is closely allied to the idea of maximization, remains largely quantitative and single-minded in its orientation, this despite the pluralism of motivations that it appears to be willing and able to accommodate within its seemingly minimalist structure. The alternative account is more qualitative, or categorical (although not absolute), offering a conception of a rational ordering of particularity that is more allied to the idea of an understanding or interpretation (under rules or principles) than it is to maximization. In this paper this alternative conception of rationality is referred to as categorical reason. The real challenge for the paper, however, is not so much to articulate two alternative accounts of rationality, but to begin to make each accessible to the other within some common intellectual framework. While rational choice theory provides a useful and precise set of tools for beginning this process of achieving mutual understanding, the pap","PeriodicalId":431450,"journal":{"name":"Jurisprudence & Legal Philosophy","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124702280","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：