Normative Legal Theory
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Introduction Normative legal theory is concerned with the ends and justifications for the law as a whole and for particular legal rules. Previous entries in the legal have examined exemplars of the three great traditions in normative theory–consequentialist, deontological, and aretaic (or virtue-centered) perspectives. There are important differences between these three families of theories at
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Jeremy Waldron (New York University – School of Law) has posted Basic Equality on SSRN. Here is the abstract: This is a three-part study and defense of the idea of basic human equality. (This is the idea that humans are basically one another’s equals, as opposed to more derivative theories of the dimensions in which
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Check out Ken Simons’s Creeping consequentialism and insidious economics, part I over at Prawfs. Here’s a taste: You are teaching or analyzing legal rule A. Suppose rule A seems to express an underlying standard of undesirable or impermissible conduct C. For example, the legal rule is: "D must pay compensatory damages to P when D’s unreasonably
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Jeffrey Lynch Harrison (University of Florida – Fredric G. Levin College of Law) has posted Happiness, Efficiency, and the Promise of Decisional Equity: From Output to Process on SSRN. Here is the abstract: Those who resist the teachings of law and economics are rightfully concerned that economic efficiency is largely based on the predictions of
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William A. Edmundson (Georgia State University) has posted Posterity and Embodiment on SSRN. Here is the abstract: Our concern for the future and our conception of human nature have both a philosophical dimension and a public policy dimension. Which would be the better way to spend our next dollar: on life-extension or on artificial intelligence?
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There is a nice (but introductory) discussion of the Is-Ought distinction at Prawfs, with contributions from Jeff Lipshaw & Rick Hills. For a slightly deeper discussion, see Legal Theory Lexicon 014: Fact and Value. And here are four relevant entries from the Stanford Encyclopedia of Philosophy: Rachel Cohon, Hume’s Moral Philosphy, Richard Joyce, Moral Anti-Realism,
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Joseph Singer posted Normative Methods for Lawyers back in February, but I missed it. Here is the abstract: How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I
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Introduction Recently, the Legal Theory Lexicon provided a very general entry on the the topic of justice. The notion of justice can be analyzed in many ways, but one good place to start is with Aristotle. Aristotle divides the topic of justice into two main parts, corrective justice and distributive justice. Distributive justice concerns the
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Robert C. Hockett (Cornell University – School of Law) has posted Taking Distribution Seriously on SSRN. Here is the abstract: It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing
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Andrei Marmor (University of Southern California – Law School) has posted The Ideal of the Rule of Law (BLACKWELL COMPANION TO THE PHILOSOPHY OF LAW AND LEGAL THEORY, Blackwell Publishing, Forthcoming) on SSRN. Here is the abstract: In this short essay I argue that the ideal of the rule of law is based on the