Law & Society Blog

In reply to a recent thread, Cosim had two pressing concerns over the ethics and legal philosophy behind free speech.

(1) “I’m not sure why the law should tolerate racist opinions; general propositions don’t decide concrete cases. For example, to take the Brandenburg case from American constitutional law, Klansmen spoke about sending “€˜the Black back to […]

Larry Solum takes issue with my previous post on originalism, even though I am not entirely sure why.

Brian Leiter has a Originalism, as the name implies, means that the toady’s meaning of the constitution ought to be determined in light of where the constitution came from. This is similar to the old spy’s wisdom that if you want to know what a piece of information means, look where it has been.

As the BBC reports today, Germany has signed a Nazi-files accord, which will give access beyond victims to the files kept by the Nazis. The accord still has to be ratified by the eleven members of the ITS commission (Germany, Belgium, Britain, France, Israel, Italy, Greece, Luxembourg, Poland, the Netherlands and the US).
The 47 […]

The question is whether R can be granted under the law given F, or put differently, whether there is a right to R given F, specifically, whether f1…fn fulfill the elements E of a norm N that orders the relief R…. That, in turn, informs the process of legal research.(1) A typical civil law argument uses F as a starting point for maximum possible abstraction, and then deducts the correct application of the law from that abstraction, following the system of categories developed by past jurisprudence.

The connection between law and morality (or the lack thereof) is one of the most debated issues in legal philosophy.

The case of Arizona v. Berger can be summed up in one sentence, taken from the dissenting opinion:In the case before us, Berger was sentenced to 200 years – more than two and one-half lifetimes, from birth to death – for possessing twenty lewd and obscene photographs. The Arizona Supreme Court upheld the sentence, finding that it did not violate the Eights Amendment’s prohibition against cruel and unusual punishment.

In a recent post, I claimed rather traditionally that consequentialism and deontological ethics are based on two basic moral intuitions that coexist peacefully over a wide range of normal situations but lead to sharply different results in extreme situations. Usually, these extreme situations pit the vital interests of one person or a handful of people […]

This new paper by Brian Bix looks like a must read. Here is the abstract:
Gustav Radbruch is well known for a “formula” that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East […]

If you are like me, you are a bit tired of the originalism debate in American constitutional law. I can never quite shake the feeling that, if the authors of the Federalist Papers had championed universal health care and equal funding for public schools, many present-day originalists wouldn’t be so orginalist. The second reason why […]