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This chapter covers the writings and interchanges of various Jewish theologians who wrote in America in the late 1940s, the 1950s, and the 1960s, who included existentialists, and Reform Jewish theologians. These writers include Emil Fackenheim, Will Herberg, Martin Buber, Franz Rosenzweig, Eugene Borowitz, Bernhard Heller, Jakob Petuchowski, Arthur Cohen, Abraham Joshua Heschel, Joseph Soloveitchik, Lou Silberman, Bernard Martin, Eliezer Berkovits, Richard Rubinstein, and many others. The chapter also covers the debates in various journals as well as ideas put forward in more substantial publications (essays, books, etc.).

Public lawyers in the Weimar Republic conceptualized the law as a novel means of performing the following pressing tasks that confronted state and society in the twentieth century: the regulation of an industrial economy, the amelioration of economic inequality, and the negotiation of cultural disagreement. During the Kaiserreich, monarchically legitimated elites unilaterally executed comparable tasks. However, in the Weimar Republic, previously excluded social groups—for instance, those represented by the Catholic, Social Democratic, Communist and National Socialist parties—now vied with traditionally represented social forces in electoral and parliamentary fora to formulate and direct regulatory, redistributive, and socially integrative policy. This chapter focuses on the fraught but not necessarily hopeless relationship of law and the welfare state or Sozialstaat. It traces the way liberal and social democratic lawyers like Richard Thoma and Hermann Heller attempted to constitutionally legitimize novel efforts at political regulation, economic redistribution and social integration while avoiding the intellectual either/or's insisted upon by the dominant legal theorists of the epoch, Hans Kelsen and Carl Schmitt.

Kant’s “transcendental aesthetic” is a touchstone of modern philosophy regarding affect, sensation, and space and time, as well as aesthetic theory. It postulates that the mind senses space and time without the presence of any external object. Space and time are the mind’s self-affection. Maurice Merleau-Ponty contests the disembodied nature of Kant’s postulate by examining the ambiguities of touching/being touched/touching oneself. Intriguingly different interpretations of Merleau-Ponty by Daniel Heller-Roazen and Judith Butler are shown to address the otherness in self-affection. It is then argued that self-arousing passions such as jealousy are turned outward in Aristotle but inward in modern settings; Harold Pinter’s Betrayal dramatizes jealousy’s involuted rage, an affecting of oneself rather than a violence inflicted on another. A juxtaposition of Poe and Freud brings to light the question of affect and self-affection in aesthetic theory itself. Does reception retrace the artwork’s creation, or are the motives and gratifications of creation radically divergent from the gratifications and affects in reception? Heidegger’s approach to mood, emotion, or state-of-mind as attunement questions the Kantian inside/outside in perception and feeling. Beyond that, it sits at the heart of such central concepts as the “ontological difference,” “present-at-hand” and “ready-to-hand,” and the temporality of Angst.

This chapter shows the effects on practice of the three important positions in the philosophy of law. Its boundaries are for the most part firmly set by Weimar. Its focus is the contributions of three figures —Schmitt, Kelsen, and Heller —to an understanding of particular problems of the Weimar Constitution. This chapter's focus on Weimar is due to the author's conviction that political and legal philosophy are always best appreciated in a context that brings the issues at stake to life. Weimar, and in particular the period just prior to Hitler's advent to power, is one such context —a kind of laboratory for ideas about the nature of law and its relationship to politics.

This chapter explores Heller's argument with Schmitt against Kelsen that all conceptions of law are fundamentally political and tied to particular historical and social contexts. However, he shared with Kelsen a commitment to democracy, to the liberty of the individual, and to social equality. It shows that Heller did not hold to any hard and fast distinction between positive legality and principles of legitimacy. It discusses Heller's warning that Schmitt's attempt to escape normativity could succeed but at the cost of the destruction of the Western culture. It shows Heller's ideas on what he considers to be a workable and realistic political theory of democracy in which the rule of law and individual rights play a central role.

This chapter demonstrates how Rawl's version of political liberalism is stuck firmly on one horn of the range of dilemmas Schmitt thought typified liberalism. Since the other horn is occupied by Kelsen's Pure Theory of law, it suggests the need to move beyond, in Leo Strauss's phrase, the ‘the horizon of liberalism’. It then demonstrates how Jürgen Habermas's recent work on legal and political theory is the best contemporary exemplar of such a move. It also argues that Heller's position does more than provide the basis for this move. For in some important respects, Heller's position is superior to Habermas's.

Chapter abstract: The aim of this chapter is twofold. It initially illustrates Mortati’s version of legal institutionalism and then explains how his idea of the material constitution addresses the challenge of pluralism. There are three main parts of the chapter. In the first, the historical context of Mortati’s reflections is briefly introduced. The second part is centered on the main tenets of his legal theory. First, his imperative conception of law and the institutionalist version of the legal order are compared not only with Romano and Schmitt, but also with Smend and Heller. Then, the key notion of the material constitution is reconstructed through an analysis of its function, subjects, and fundamental political aims. The last part of the chapter argues that the concept of the material constitution was conceived as a response to social pluralism and elucidates its undergirding integrative logic.

Smend’s Verfassungs und Verfassungsrecht (1928), Schmitt’s Verfassungslehre (1928) and Heller’s Staatslehre (1934) were reactions to Kelsen’s Allgemeine Staatslehre. This chapter juxtaposes the anti-positivist discussion of key constitutional concepts (state, constitution, sovereignty) against the positivist conceptions that were set out in the first chapter. Chapters 1 and 2 are thus reflective of Jellinek’s ‘two-sided’ theory of the state (normative-legal versus empirical-social). But the value of the first two chapters is not only historical: as the anti-positivist writers were more commonly read and cited than Kelsen, they influenced and shaped the understanding of the state post-1945. Post-war public law and scholarship is discussed in the following two chapters.

Addressing textualism in its various manifestations, this chapter argues, in critique of Schlink and Scalia, that genuine interpretation is governed by the attempt to determine the author’s intention. Examining Scalia’s divergence from this hermeneutic norm, Fish argues not only that his theory as exemplified in Heller is bad, but also that as an interpretative practice, it is evil.

Touring takes company to Miami and Puerto Rico. Government withholds funding, another Hurok offer rejected. Alberto is choreographing new works, Fernando authors proposal for Latin American ballet company to 1953 Continental Culture Congress in Chile which is presented by Nicolás Guillén. U.S. embassy withdraws Fernando’s work visa.

This chapter outlines three possible ways to characterize the manner in which constitutional jurisprudence deals with information. First, there are strategies that try to exclude as much information as possible. Information excluding strategies are ubiquitous in legal thought and practice. Here Justice Antonin Scalia’s public meaning originalism is taken as a prime example of this strategy. Another strategy is to include as much information as available. Recently this strategy has been exemplified in Richard Posner’s work on judging. Therein he labels the most honest and effective judge a “constrained pragmatist.” Finally, there is the possibility that courts could be set up to actually help produce relevant information. It is argued that the jurisprudence of democratic experimentalism exemplifies this strategy. Using Scalia’s information excluding opinion in the gun-rights case District of Columbia v. Heller, and Posner’s information including Second Amendment opinion, Baskin v. Bogan, it is argued that information-rich jurisprudence offers a much more effective and sensitive jurisprudential strategy in constitutional interpretation.

This chapter introduces the commons and anticommons templates to understand and devise solutions to a broad range of residential property dilemmas. The chapter discusses Garrett Hardin, who popularized the phrase “tragedy of the commons” to refer to a set of problems typified by the tendency of ranchers acting in their own self-interest to overgraze a common field. Such problems are characterized by a payoff structure that leads people to take actions that are individually rational but collectively harmful. Anticommons began as a thought experiment introduced by Frank Michelman, who posited an imaginary world in which everyone has the power to exclude all others from a resource, but nobody has the power to enter or use that resource without the permission of everyone else. The chapter also discusses Michael Heller, who developed the idea of the anticommons by finding real-world examples that exhibit this structure.

This chapter explores a 2008 US Supreme Court case that brings into play two starkly contrasted readings of the Second Amendment to the US Constitution: a textualist or “originalist” reading written for the majority by Justice Antonin Scalia, and a “contextualist” reading written by two of the dissenting justices. The Court’s discovery of a previously unarticulated constitutional right (the right of private citizens to carry guns for self-defense) is firmly rooted in the libertarian principles of the US gun lobby. Yet its judgment in this case is made as though it were entirely free of any such context: the Court endows the text of the Constitution with an absolute authority and envisages its own decision-making processes as taking place within an apparently timeless and transcendental institution. That interpretive institution is, however, neither timeless nor transcendental but rather a field of self-reinforcing authority that enables and contains dissenting views and is composed of quite heterogeneous materials: a multiplicity of legal domains, a network of material and immaterial orderings, disparate forms of discourse, and the pre-judgments and tacit understandings that underpin them.

Ryoko Sekiguchi’s Héliotropes is deeply informed by Giorgio Agamben and Daniel Heller-Roazen’s work on the ‘end of the poem’ and on ‘speaking in tongues,’ and so Sekiguchi perfectly unites classical Arabic literature, modernist poetics, and contemporary philosophical and critical inquiry into prosody. As the youngest of the five authors studied in Pacifist Invasions, she draws on recent innovations in critical poetic theory, and the complex linguistic, prosodic and thematic arrangements of the muwashshaḥa and the history of its scholarship. Her poetry provides a spectacular, particularly poignant exemplar for where we may begin with the language question, now that we have ended. Her solution to the inescapable problems facing French poetics represents an extreme departure: to exit altogether the Francophone literary idiom, and back toward its beginning as prise de conscience or ‘awakening,’ mediated by a Franco-Arabic tradition of unprecedented poetic innovation. Her Franco-Arabic composition deforms and unfurls a language undone. As with Saussure and Stétié’s aporetic notion of a ‘pacifist invasion’ of language, with Sekiguchi this linguistic transformation takes less the form of Francophonie’s initial surrealism- tinged linguistic destruction than a rediscovery and resurrection within and through a French language surface of classical Arabic literature and mystical Islam and Sufism. In this light, the poetics of the muwashshaḥa marks an exceptional site of transference between languages in passage, a liminal moment of transit where languages are placed at one another’s thresholds, freely interwoven into one another, becoming other languages, becoming something other than language as such, that is, characterized by a basic correspondence between visual sign and uttered sense.

Antonin Scalia’s greatest rhetorical triumph was declaring that he followed an originalist method of interpretation and getting people to believe him. All three of those terms, “originalism,” “method,” and “interpretation” deserve attention. For originalism, the chapter looks at Heller and Scalia’s claim that the prefatory cause is surplusage by comparing the relation of preface to “operative clause” to the relation of verse to chorus in the Great American Songbook, and then the relation of prefaces to laws in Plato’s Laws. For method and interpretation, the chapter draws material from Spinoza’s method of interpreting the Bible. The chapter argues that Scalia’s method of interpretation takes the vice of Holmes’ bad man and makes it into a virtue.

This chapter offers a brief sketch of a selection of twentieth-century precursor or foundational trauma texts, including J. D. Salinger’s ‘For Esmé – with Love and Squalor’, Joseph Heller’s Catch-22, Kurt Vonnegut’s Slaughterhouse-Five, Toni Morrison’s Beloved, E. L. Doctorow’s The Book of Daniel and some of Tim O’Brien’s Vietnam narratives. The chapter analyses some of the key paradigms that these trauma texts helped to construct, including extreme chronological and narrating fragmentation, formal employment of repetition, the radical decentring of narrating subjectivity, and the belated revelations of traumatic incidents. A contrast is drawn in this chapter between the originally shocking effects of these deliberately disjointed narratives, and trauma texts from later in the century that employ similar, but by now derivative, representational practices.

Heidegger defines the “They” as humanity in its commonplace attitude towards death: death is always inferred (rather than directly faced), always deferred. But Limon's reading of Heller's Catch-22 demonstrates that conceiving of death immediately and immanently is actually the easier exercise: if it is always here, it can always be confronted and withstood; it is deferred, always awaiting, anti-heroic death that is terrifying. The central paradigm of anti-heroic death appears in Kierkegaard's Fear and Trembling: death is imagined at the end of an inexplicable journey to Moriah. When (as Kierkegaard revises the story) God fails to save Isaac, he offers him eternal life but fails to offer him a return to childhood (since the one impossible reward for knowledge of death is innocence of it): thus adulthood becomes the key concept for conceiving the deferred death of the “They.”

This chapter focuses on catch-22 games, where each player finds themself caught in a cycle from which it is difficult if not impossible to escape, and is organized as follows. Sections 10.2 and 10.3 show how the exercise of moving power can help the frustrated player, and sometimes the other player as well. Section 10.4 applies the theory of moves to the specific catch-22 game in Joseph Heller’s classic novel, Catch-22, which involves a pilot trying to avoid combat duty and a doctor who may declare him to be sane or not sane to fly. Section 10.5 shows that medieval witch trials can be conceptualized as a catch-22 game different from the game in Catch-22. Section 10.6 discusses the conflicts which king-of-the-mountain games seem best to model and shows that they, together with the twelve catch-22 games, exhaust the 2 × 2 cyclic games in which moving power is effective. The final section discusses ways of stabilizing outcomes by showing how players caught in catch-22 or king-of-the-mountain games might reach mutually satisfactory settlements.