Law & Society Blog

Markus Dirk Dubber of the University at Buffalo Law School has published yet another excellent discussion of modern German criminal law. In Theories of Crime and Punishment in German Criminal Law, he discusses the critical doctrinal importance of “legal goods” (Rechtsg??ter) and the ascend of positive general prevention (positive Generalpr?ßvention),
… which today is the dominant […]

Frumkes Lecture at NYU, in which Hanno argued that international law may have been the argument the Melians lacked to convince the Athenians not to attack Melos, Simon Blackburn posted the following interesting comment:I would classify the habit of deference to law (and law extended to cover international relations) as a good result of what I called a sentimental education - an education here into a certain pattern of respect…. …For the full comment, and the further interesting comments by Paul Gowder and George Ehrhardt (don’t miss this one, Ehrhardt writes about the invadee’s prior obligation of sympathy for the invader), see the comments to Hanno’s posts (scroll down).

How did I miss Scott Horton’s excellent post on the connection between John Yoo’s torture memorandum and the political philosophy of Carl Schmitt, over at Balkinization? Horton makes a very important point about the kinship between Schmitt’s Begriff des Politischen, current U.S. political thought, and the rise of friend/foe rhetoric. It is important to remember […]

The Athenians then shift the burden of persuasion to the Melians by asking them to make their case against the invasion, but not before dictating the terms of the debate:For ourselves, we shall not trouble you with specious pretenses [of right or wrong], since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.Having been “enjoin[ed] to let right alone and talk only of interest,” the Melians make the following arguments: It is in Athens’ interest not to “destroy what is our common protection, the privilege of being allowed in danger to invoke what is fair and right.”… In addition, the barrier between international and domestic laws is becoming increasingly porous, as evidenced by the outright incorporation of international law into the body of laws governing the European Union and, to a lesser degree, by the U.S. Supreme Court’s (unsurprisingly controversial) practice of interpreting domestic laws in light of international laws.So maybe we are in a better position today than the Melians were 2,500 years ago. And it may well be a special obligation of the lawyers and the legal philosophers as guardians of the rule of law, to prevent exercises of unmitigated Realpolitik by insisting on respect for the rule of law in all affairs of the state.

Similarly, in transmitting acquired information, we try to extend our lives beyond the inevitable physical death and the limitations of passing on genetic information only, which explains Flusser’s motto: scribere necesse est, vivere non est.Flusser identifies five distinct stages of history and multiple stages of post-history, each of which corresponds to certain structures of communication…. No structure of communication has ever replaced previous structures in their entirety, rather, certain structures were dominant at certain times, shaping our perception of the world and our concept of the self.Much of Flusser’s thought is directly related to what has emerged as the blogosphere, the rejection of programmed media, the empowerment of the individual through peer to peer communication, and the eclectic “rip, mix, and burn” approach to culture and creativity.

In Law and Formalism, Lawrence Alexander explains that law is essentially formalistic, because it addresses the problem of information, not of immoral motivation, or, as he puts it, “that men are not gods, rather than that men are not angels.” To solve the problem of information, “law must consist of determinate rules,” which are abstract […]

One of the key findings of cultural cognition theory is that cultural world-views not only influence our evaluation of (agreed upon) facts but also, and more fundamentally, that world-views influence our perception and thus the creation of the factual universe available to us. Hence the term “cultural cognition.”… These findings provide the first biological evidence for the involvement of perceptual and emotional processes during social conformity.In other words, test subjects who went against the group showed brain activity in a region associated with emotions from social conflict, which was to be expected.

It is well understood today that the legal enterprise is marked by indeterminacy. This indeterminacy exists in several respects. No lawgiver in history has managed to create rules that were comprehensive: there is a limit to how helpful abstract language is in answering unforeseen questions. Conversely, courts have never managed to completely satisfy their audiences […]