Alani Golanski
@alanigolanski
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James Kent Scholar, legal philosophy @ColumbiaLaw -- philosophy @GC_CUNY -- Ghanaian music @CalArts -- Partner/Director @weitzluxenberg (own 2 cents).
Brooklyn, NY
Joined February 2015
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Why the rule of law project, typically viewed as conservative, demands social and economic conditions that foster people's capabilities to assert rights and defenses, coordinate opposition to arbitrary authority, and participate in democratic governance.
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Extraordinary letter from Hannah Arendt to James Baldwin (21 Nov 1962)
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This volume (1937) was a political science staple for three decades - Plato to fascism - George Sabine professor of philosophy
@Cornell
, also a carpenter and blacksmith, assisted Herbert Marcuse with his 1941 work Reason and Revolution.
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When Hans Kelsen arrived in the U.S. in 1940, he was "undoubtedly the leading jurist of the time" (Roscoe Pound), & "the most original teacher of law of our time" (Karl Renner), yet he couldn't get a teaching spot in any U.S. law school.
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Two years before publication of A Theory of Justice, John Rawls, Amartya Sen, and Kenneth Arrow used an early draft of the book while co-teaching a political philosophy course at Harvard.
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Kelsen (1957) says, "If the history of humankind proves anything, it is the futility of the attempt to establish, in the way of rational considerations, an absolutely correct standard of human behavior."
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The law, unlike any other system of norms, regulates its own creation.
-- Hans Kelsen (1941)
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Ronald Dworkin's two central theses in legal philosophy: (1) the one-system thesis, by which law is a segment of morality; (2) the interpretive thesis, by which any legal proposition can be true or false based on its fit and "best justification of the role it plays for us."
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The Russo-Argentine legal philosopher Eugenio Bulygin deserves more attention.
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Ronald Dworkin started out as law clerk to Judge Learned Hand ("the law clerk to beat all law clerks," said LH). But when he disagreed with Hand's advocacy of judicial restraint, Hand blurted out, "Fuck you!", steam coming "out of his eyebrows," according to Dworkin.
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How awful a job writing a book is; how wise Austin is never to do it.
-- HLA Hart
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Constitutional democracy requires an attitude of reciprocity for John Rawls, such that those holding irreconcilable doctrines must nevertheless accept one another as free and equal citizens.
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Leslie Green has long argued that the connection between law and justice is real, but weak. This fascinating book is forthcoming.
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David Dyzenhaus's fascinating fairly recent paper arguing that the main divide in legal philosophy isn't positivism vs natural law, but Hart's starting with a national legal order vs Kelsen's with the legality of international law.
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A useful reminder to any judge is that they might well be wrong in their political judgments, and that they should therefore decide hard cases with humility.
-- Ronald Dworkin
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His thesis, what became "The Concept of a Legal System", was tremendously difficult. I had to put wet towels around my head whenever he turned in a piece, which he did with great regularity. It was a brilliant piece of work.
-- HLA Hart
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Franz Newmann, a Weimar Republic jurist and Frankfurt School thinker writing in the 1920s, saw the rule of law and sovereignty as the defining characteristics of the modern nation-state, yet in perpetual, irreconcilable struggle with one another.
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Raz's exclusive legal positivism - law claims legitimate authority, is identified with deliberation over its reasons preempted.
Alexy's non-positivism - legal statements claim correctness, such that a legal text announcing its own injustice wd be a "performative contradiction."
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My professor of European literature, Vladimir Nabokov, changed the way I write. Choosing the right word, and the right word order, could make an enormous difference.
-- Ruth Bader Ginsburg
#RBG
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Amartya Sen credited, among others, John Stuart Mill, John Rawls, Jürgen Habermas, Ronald Dworkin, and Seyla Benhabib, for harnessing the notion of public reasoning in service of a view of democracy broadened from that of public balloting toward one of "government by discussion."
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Shortly after I'd been elected to the chair in 1953, the undergraduates gave me a party and we had a very jolly time. And they said, 'what we want is a book about law -- telling us what law is. Why don't you write one?' So I did.
-- HLA Hart
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Dworkin argued that Scalia "seriously misunderstood" the implications of his textualist/originalist interplay for constitutional law, having a "schizophrenic character that entails a style of constitutional adjudication which he ends up denouncing."
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Dworkin's anti-perfectionism: political decisions must be independent of any particular conception of the good life.
Raz's perfectionism: gov't has a duty to promote autonomy by creating morally valuable opportunities and eliminating repugnant ones.
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Quine: Conventions are agreements, and we've never agreed to abide by conventions of language.
Lewis: Conventions aren't agreements, they're practical solutions to recurring coordination problems.
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HLA Hart's Essays on Bentham has long appealed to a wide range of scholars.
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Joseph Raz thoughtfully reflected that "'the law' is a concept used by people to understand themselves," hence that "a major task of legal theory is to advance our understanding of society by helping us understand how people understand themselves."
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Thwarted by his family's social standing from pursuing his dream of a degree in philosophy, mathematics, and physics, young Hans Kelsen enrolled, without enthusiasm, in law at the University of Vienna.
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I do not care whether my views are classified with legal positivism, as they commonly are, or not. I believe that the classification of legal theories as legal positivist or non-legal positivist is unhelpful and liable to mislead.
-- Joseph Raz
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Joseph Raz is among those who have shown that a morality-free concept of law is compatible with a commitment to the idea that the object framed by this concept is necessarily morally valuable and beneficial.
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Even the great national revolutions of the past -- Russian 1917, French 1789, American 1776, English 1640, German Reformation 1517 -- eventually made peace with the legal tradition that they or some of their leaders had set out to destroy.
-- Harold J. Berman
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Described by Martha Nussbaum as "the first great radical feminist in the Western philosophical tradition," John Stuart Mill lost his parliamentary seat in 1868 on his advocacy of women's suffrage and worker representation, but the next year published The Subjection of Women.
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Ouch, Wendel quotes King Louis XII, "Lawyers use the law as shoemakers use leather; rubbing it, pressing it, stretching it with their teeth, all to the end of making it fit their purposes."
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This short piece by Joseph Raz appeared five years after his book The Concept of a Legal System, and provides a nice complement.
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Here Joseph Raz nicely explains that positivism gives a test for identifying law without resort to moral or other evaluative criteria, but that "it does not follow that one can defend the doctrine of the nature of law itself without using evaluative arguments."
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The law, unlike any other system of norms, regulates its own creation.
-- Hans Kelsen (1941)
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Wittgenstein recommends "Mrs. Geach" (E. Anscombe) for Research Fellowship (18 May 1945) (copy).
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HLA Hart felt that "the most misused quotation from any American jurist" was Holmes' "life of the law has not been logic" phrase, meant not as an anti-formalist attack on use of logic but as an exhortation that judges explicitly weigh "considerations of social advantage."
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The premise of Joseph Raz's first book (1970) was that all prior analytical jurisprudence had failed to realize that a theory of the legal system is a prerequisite to any adequate definition of 'a law'.
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Hart nearly pulled this, grousing to Fuller, "the Law Rev boys have made a ghastly mess of my article by excising what they think is irrelevant or fanciful. Please induce them to be sensible, they mustn't publish it under my name with these cuts that destroy the precise nuance."
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Legal philosopher David Lyons
@BU_Law
: "It appears reasonable to conclude that a legal system does not automatically merit the respect that we might give it by our obedience. Law must earn that respect."
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Hannah Arendt criticized this 1929 work for its view that thinking derives from one's social and economic conditions, summoning Augustine for the idea that a transcendent thought, eg neighborly love, could guide action hence change conditions.
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In his contribution Formalism and the Rule of Law, Joseph Raz dismissed the idea that "the form of law can be an ideal, "the ideal of the rule of law, that all law should conform to," for "if it is part of the form of law, then law conforms to it, or it would not be law."
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Law is undoubtedly the most complex, sophisticated, and structured social institution human cultures have created.
-- Andrei Marmor
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The student textbook tradition in jurisprudence was awful. They were books about books. What I tried to do was produce a theory of my own -- lamentable as it may be.
-- HLA Hart
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After the University of Maryland Law School rejected his application on racial grounds in 1930, Thurgood Marshall obtained his law degree at Howard University, and by 1936 won an NAACP lawsuit challenging the Maryland school's segregation policy.
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HLA Hart's The Concept of Law is more sensitive than perhaps any other classic of philosophy of law to law's potential to be an instrument of oppression as much as liberation.
-- David Dyzenhaus
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Hans Kelsen here (1929) says that, whereas "the absolutist worldview translates into an autocratic stance," a worldview receptive of critical reflection "in an ever changing experience" sustains a democratic stance.
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David Dyzenhaus' fascinating paper arguing that the main divide in legal philosophy isn't positivism vs natural law, but Hart's starting with a national legal order vs Kelsen's with the legality of international law.
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Many distinguished English lawyers & judges, like myself, had no law degree or university law education. Instead we qualified for admission as barristers by a relatively short period of private study sufficient to pass the not very exacting professional examination.
-- HLA Hart
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David Dyzenhaus-edited (2019) publication of Hermann Heller's major Weimar-period work Sovereignty (1927), responsive to albeit far less well-known than Hans Kelsen's 1920 Problem of Sovereignty and Carl Schmitt's 1922 Political Theology.
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One of the best, and most clear, synopses of the Hart-Dworkin rift and then-related issues in legal philosophy, in just a dozen pages, remains non-lawyer John Mackie, The Third Theory of Law, 7 Philosophy & Public Affairs 3-16 (1977).
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Before Hart vs Dworkin there was, in 19th-century Germany, Savigny (the historical school: law unconsciously expressed the Volkgeist, customary law was law par excellence) vs Jhering (the life of the law emerges in struggle, over state power, of classes, of individuals..).
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@numinosity
@mfgrp
@Bob_Wachter
@SWAtlasHoover
You can now look forward to a letter from Kasowitz Benson Torres LLP.
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Throughout his career, Quine used a 1927 Remington typewriter, replacing a bunch of its keys with logical symbols. Quine said he didn't need the a question mark anyway because he dealt in certainties.
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The Supreme Court issuing decisions "so important and so controversial in character and so unlike what ordinary courts ordinarily do," Hart saw theories explaining its powers as having oscillated between two extremes - the Nightmare and the Noble Dream.
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A theory of law must be based, at least partly, on a theory of state, and denying this has been one of Kelsen's gravest mistakes. A theory of state, however, is partly based on a theory of law -- the two are intimately interrelated.
-- Joseph Raz
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Joseph Raz: The rule of law is designed to minimize the danger created by the law itself.
Jeremy Waldron: The RoL is an idea designed to correct dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular.
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In 1967, philosopher of language Michael Dummett and his wife, the author Ann Dummett, were arrested for picketing against racial discrimination, charged with public disorder, but acquitted upon an official admission that the police, not protesters, had obstructed passage.
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The premise of Joseph Raz's first book (1970) was that all prior analytical jurisprudence had failed to realize that a theory of the legal system is a prerequisite to any adequate definition of 'a law'.
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For Joseph Raz respect for human beings as autonomous agents requires taking account of their capacity for making informed choices, for well-being rooted in freedom to realize the ideal of "a life freely chosen" such that one is an author, in significant part, of one's own life.
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Justice Alito is our own Carl Schmitt, for whom it's the exception, not the state of normality, that defines what normal means.
Justice Alito suggests that, if former presidents are subject to prosecution after leaving office, they'll be more likely to seek to unlawfully remain in office after they were defeated for re-election/their term has ended.
JFC.
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Ronald Dworkin is, if he and Shakespeare will allow me to say so, the noblest dreamer of them all, with a wider and more expert philosophical base than his predecessors, and he concentrates formidable powers of argument on the defence of his theory.
-- HLA Hart
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Lawyers are trained to summarize facts and to extract legal doctrine from official sources, such as statutes & judicial opinions. This approach produces only the illusion of progress, and leaves the genuinely important issues of principle in the law untouched.
-- Ronald Dworkin
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In his philosophy discussion group at Oxford '30s -- w/ A.J. Ayer, Isaiah Berlin, J.L Austin, Theodor Adorno -- Gilbert Ryle inevitably responded to Adorno's dialectical remonstrations, "I expect there's a great deal in what you say Teddy. Now Freddie, as to analytic truths . ."
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Ronald Dworkin saw an individual rights conception of the rule of law, via judicial review, as a route to equality of official treatment. But he presupposed sufficient access to the courts. This paper flips it, argues that equality is what gives access.
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Our duty to respect the life of others does not vary in tune with every fluctuation in the value of the contents of the life of those others.
-- Joseph Raz
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Two years before publication of A Theory of Justice, John Rawls, Amartya Sen, and Kenneth Arrow used an early draft of the book while co-teaching a political philosophy course at Harvard.
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The Viennese legal philosopher Alexander Somek interestingly argues that artistic depictions -- giving us the goodness in wicked schemes and the sinister side of righteousness -- suggest the one-right answer approach "is obnoxious owing to its moralistic embrace of banality."
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I assumed that law and morals are different systems of norms and that the crucial question is how they interact.. I soon came to think, however, that the two-systems picture was itself flawed, and I began to approach the issue through a very different picture.
-- Ronald Dworkin
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Dieter Henrich's fine volume, exceptional clarity, on philosophy in the two decades between Kant's Critique of Pure Reason (1781) and Hegel's Jena System (1804-05).
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Legal positivists are more likely than natural lawyers or other non-legal positivists to affirm that sometimes courts have (moral) duties to disobey unjust laws.
-- Joseph Raz
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Joseph Raz is among those who have shown that a morality-free concept of law is compatible with a commitment to the idea that the object framed by this concept is necessarily morally valuable and beneficial.
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Delighted to have received Jeremy Waldron's newly issued collection of extraordinary essays (2007 to the present) on the rule of law..
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F.A. Hayek offered that, to preserve the rule of law, lawmakers must be guided by principles "outside the law itself" from within a political tradition that "prevents the legislature from infringing the rule of law by the laws which it passes."
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Remarkable exchanges on themes in
@JeremyJWaldron
's new volume, including individuals' self-application of legal norms, and the balancing of rule of law aspirations toward certainty, predictability, coherence .. with its commitment to agency, dignity, thoughtfulness.
What a wonderful webinar with an arguably the greatest living philosopher of law, on his new book about the rule of law. From the left: Lisa Burton Crawford, Jeremy Waldron
@JeremyJWaldron
(on the screen, author of Thoughtfulness and the Rule of Law) and me, W. Sadurski.
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HLA Hart allowed that his work, and analytic jurisprudence generally, tended to reinforce an "unsociological, unhistorical, relatively uncontextual" view of law as autonomous and apolitical, such that legal education produced "narrowly-conceived lawyers."
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Legal reasoning, like most reasoning outside of mathematics and fundamental physics, is seldom formally, logically valid reasoning, says Robert Brandom, and almost all the reasons considered are defeasible.
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If interested in the nature of concepts, these three sources -- Christopher Peacocke, Frank Jackson, Joseph Raz -- are quite excellent . . and quite challenging. (Coincidentally, the cover photo for Jackson's book is by Joseph Raz.)
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For Kelsen, law's formal and substantive norms are unified and subject to official interpretation, such that the creative, interpretive aspects of legislation and adjudication differ as a matter of degree rather than qualitatively.
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Judith Shklar wrote that citizens in a constitutional democracy have heightened responsibilities to avoid passive injustice: "It should not be enough for them to wait until the agencies of government act when a public wrong has been obviously committed."
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The British constitutional theorist Albert Venn Dicey (1914) said judges are "likely to be biased by professional habits and feeling" in pursuit of the perceived "logic or symmetry of the law," and thereby "are for the most part persons of a conservative disposition."
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Different conceptions of the world can reasonably be elaborated from distinct standpoints. It's unrealistic to suppose that all our differences are rooted solely in ignorance and perversity, or else in the rivalries for power, status, or economic gain.
-- John Rawls
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Oliver Wendell Holmes, Jr., said the appearance of moral terms in the law is deceptive, for in law they mustn't be viewed morally, they must be bathed "in cynical acid."
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Robert Alexy says legal statements include a "claim to correctness," such that a constitutional or other legal text announcing its own injustice would be a "performative contradiction."
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Before Hart, Hans Kelsen said, because a norm is a rule stating people ought to behave a certain way, but not that this is anyone's actual will, Austin's claim that legal rules are commands is a "superfluous and dangerous" fiction of the "will" of the legislator or the state.
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German jurist Rudolph von Jhering, author of Der Kampf ums Recht (The Struggle for Law) (1872),
whose daughter Helene & German jurist Victor Ehrenberg, author of Die deutsche Rechtsgeschichte und die juristische Bildung, were great-grand parents of Olivia Newton-John.
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For Ronald Dworkin, "the true nerve of civic republicanism" consisted in citizens' counting their own lives as diminished if they live in an unjust community, and accepting that the value of one's own life depends on the community's treating everyone with equal concern.
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Ronald Dworkin argued states have a prima facie obligation to follow international law, not based on consent, but on their obligation to enhance their own political legitimacy, beyond what's possible just via state sovereignty.
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Upon 70 years of research, at age 89, Roscoe Pound published his 3,000-page Jurisprudence in 1959.
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This is the 1956 paper, by the Scottish philosopher and political theorist Walter Bryce Gallie (1912–1998), that inspired legal theorists' now oft-repeated view that the "rule of law" is an essentially contested concept.
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Following an exhaustive study of Greek and Roman legal history, Axel Hägerström (1868–1939) initiated a Swedish brand of analytical philosophy and founded Scandinavian legal realism - the Uppsala school of jurisprudence.
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