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Ethics beyond Species and beyond Instincts: A Response to Richard Posner

Peter Singer

in Animal Rights: Current Debates and New Directions

This chapter responds to Richard Posner's commentaries on the author's view animal rights. It answers the question concerning the reasons for changing the law to entitle animals, and discusses ... More

This chapter responds to Richard Posner's commentaries on the author's view animal rights. It answers the question concerning the reasons for changing the law to entitle animals, and discusses Posner's view on the proper status of animals and on the wider question of the role that ethical argument should play in such questions. The chapter argues that human beings have the ability to go beyond instinct, and that theoretical arguments for rights, of the kind which Posner disparages, can in fact be persuasive.Less

Pragmatism

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Leading pragmatists including Stanley Fish and Richard Posner have argued that the philosophic approach is fruitless because moral philosophy is a fruitless activity; indeed, they have challenged the ... More

Leading pragmatists including Stanley Fish and Richard Posner have argued that the philosophic approach is fruitless because moral philosophy is a fruitless activity; indeed, they have challenged the entire enterprise of constitutional interpretation, rejecting the assumptions underlying it and claiming to expose the “myths” of the rule of law. This chapter shows the incoherence of practical pragmatism (Posner's pragmatism) and the admitted political impotence of purely theoretical pragmatism (Fish's pragmatism). It also rejects pragmatists' claim to explain legal phenomena scientifically. But the chapter doesn't quarrel with all that pragmatism stands for. It rejects the skepticism of pragmatism's leading figures about constitutional meaning and the duty of judges and other interpreters to pursue that meaning through a self-critical process best represented by the philosophic approach. The chapter has no quarrel with pragmatism's instrumental view of law in general, for legal instrumentalism, without more, is perfectly compatible with the philosophic approach to constitutional meaning.Less

Law’s Practical Theory

Joseph P. Tomain

in Creon's Ghost: Law, Justice, and the Humanities

This chapter examines Oliver Wendell Holmes Jr's speech, The Path of the Law. Holmes intended to be provocative in his speech when he wrote, “I often doubt whether it would not be a gain if every ... More

This chapter examines Oliver Wendell Holmes Jr's speech, The Path of the Law. Holmes intended to be provocative in his speech when he wrote, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.” Holmes was indeed troubled by the confusion of moral ideas with legal ones, and he argued strenuously for their separation. However, he was not unaware of the relationship between law and morality. His speech explains their relationship and his separationist argument. Holmes was telling us how to understand the seemingly contradictory impulses of the law. First, we must clearly understand what the law says with moral talk stripped away. Then we can critique man's law against a higher law or Justice standard.Less

What Should We Do about Torture?

James Griffin

in Ethics and Humanity: Themes from the Philosophy of Jonathan Glover

This chapter attempts to clarify the claim that there should be an absolute prohibition against torture. To clarify the claim, it is important to have a clear understanding of what we mean by ... More

This chapter attempts to clarify the claim that there should be an absolute prohibition against torture. To clarify the claim, it is important to have a clear understanding of what we mean by torture. Treatment that destroys rational agency, and thereby undermines human dignity, defines the heart of human torture. George W. Bush's administration, in defining torture as prolonged physical or mental damage, offered a misleading and dangerous definition of torture. Given our acceptance of killing in self‐defense and of so‐called ticking‐bomb scenarios, we cannot in theory accept an absolute prohibition of torture. However, we still might believe it right to ban torture in practice. The limits of our motivation and of our understanding — our near‐invincible ignorance — might lead us to think it best to block, if we could, any policy that would allow torture. In this regard, it is important to see the weaknesses of Alan Dershowitz's and of Richard Posner's proposals for allowing a limited use of torture. Still, we cannot rule out that there could be exceptions that would allow for torture. But to act on these exceptions, we would need to know how to weigh the considerations for and against torture in particular exceptional situations. It is far from clear, however, that we know how to weigh the relevant considerations or even how to identify the exceptional situations. Given these limitations, it is perhaps best to enforce an absolute prohibition against torture, while hoping that anyone who, contrary to the ban, resorts to torture has correctly identified an exception. Much of moral importance is at stake; but we find ourselves in murky waters.Less

Efficiency, auction and exchange

Jules L. Coleman

in Markets, Morals, and the Law

This chapter distinguishes between Pareto optimality, Pareto superiority, and Kaldor-Hicks efficiency, and provides an extended discussion of the Coase theorem. One of the central claims in this ... More

This chapter distinguishes between Pareto optimality, Pareto superiority, and Kaldor-Hicks efficiency, and provides an extended discussion of the Coase theorem. One of the central claims in this chapter is that the economic analysis of law relies largely on the Kaldor-Hicks criterion of efficiency, less on Pareto optimality, and almost not at all on Pareto superiority. This is important, especially from a normative point of view. What justifies the use of public power, that is, courts, legislatures and administrative agencies, in pursuing efficiency? In his essay Theory of Negligence, Richard Posner shows that a large number of negligence cases were decided along lines of economic efficiency.Less

Political Questions and the Hazards of Pragmatism

Jeffrey Rosen

in Bush v. Gore: The Question of Legitimacy

This chapter traces the way the classical doctrine of principled restraint has been transformed into an invitation to judicial heroism. It challenges this new doctrine by confronting one of its ... More

This chapter traces the way the classical doctrine of principled restraint has been transformed into an invitation to judicial heroism. It challenges this new doctrine by confronting one of its primary defenders, Judge Richard Posner. Posner's efforts to defend Bush v. Gore on “pragmatic” grounds only demonstrate how speculative and dangerous the new interventionism has become.Less

Can Sex Be Reasonable?

ROBERT P. GEORGE

in In Defense of Natural Law

This chapter offers a critique from the natural law viewpoint of Richard Posner’s ‘economic analysis’ of sex in his book Sex and Reason. Posner recognizes the intellectual integrity and force of ... More

This chapter offers a critique from the natural law viewpoint of Richard Posner’s ‘economic analysis’ of sex in his book Sex and Reason. Posner recognizes the intellectual integrity and force of natural law teaching on sexuality and strives sincerely to make his critique of that teaching on sexuality an informed one. The chapter argues that Posner’s failure in understanding the natural law view obscures his awareness of the profound respects in which the work of natural law theorists undermines the purely instrumental conception of practical reason which is presupposed by Posner’s economic analyses, not only of sex, but of law, and other activities and socially constituted phenomena that are the fruit of practical deliberation and human choosing.Less

Theoretical Implications

Jeffrey Brand-Ballard

in Limits of Legality: The Ethics of Lawless Judging

This chapter examines more restrictive theories of rule guidance, including those of legal formalists such as Larry Alexander and Frederick Schauer, and that of an exclusive positivist, Scott J. ... More

This chapter examines more restrictive theories of rule guidance, including those of legal formalists such as Larry Alexander and Frederick Schauer, and that of an exclusive positivist, Scott J. Shapiro. The chapter shows that their arguments do not impugn selective optimization. Shapiro’s constraint model of rule guidance is examined and found to be partially compatible with selective optimization. Shapiro’s practical difference thesis is also reconciled with selective optimization, albeit not in a way Shapiro is likely to favor. The chapter concludes by briefly contrasting selective optimization with Richard A. Posner’s legal pragmatism and Lawrence Solum’s theory of equity.Less

Corrective justice and wrongful gain

Jules L. Coleman

in Markets, Morals, and the Law

This chapter makes a distinction between two questions: what grounds a victim's claim to recovery, and what justifies holding an injurer liable for the harms his conduct occasions. That these two ... More

This chapter makes a distinction between two questions: what grounds a victim's claim to recovery, and what justifies holding an injurer liable for the harms his conduct occasions. That these two questions are distinct can be seen from the fact that a society could permit all victims to seek compensation for all injuries (other than injuries that are self-imposed) while providing that injurers can be held liable only when their conduct is faulty or negligent. Such an arrangement might be undesirable, but that would be a normative matter, not an analytic one. In other words, it is not analytic that compensation flows from an injurer to a victim. That is tort practice, one that needs a defense. By distinguishing between the grounds and modes of recognition, the chapter tries to show how a scheme of no-fault liability can be made consistent with the demands of justice in liability.Less

Pragmatism: Activism through Antitheory

J. Harvie Wilkinson

in Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance

This chapter analyzes Judge Richard Posner's alternative view of pragmatic adjudication. It argues that his pragmatic alternative gives short shrift to the values of traditional adjudication. It is a ... More

This chapter analyzes Judge Richard Posner's alternative view of pragmatic adjudication. It argues that his pragmatic alternative gives short shrift to the values of traditional adjudication. It is a formless approach that leaves judges adrift in a sea of legislative discretion.Less

Property Rights, Contract Rights, and Other Economic Rights

William J. Talbott

in Human Rights and Human Well-Being

This chapter uses the main principle to explain why economic rights should be regarded as human rights. Property rights, contract rights, and other economic rights are a solution to the productive ... More

This chapter uses the main principle to explain why economic rights should be regarded as human rights. Property rights, contract rights, and other economic rights are a solution to the productive investment CAP. Property and contract rights are not defined a priori, but should be defined in a way that they will, as a practice, do the best job of equitably promoting life prospects. The chapter uses the main principle to explain the moral appropriateness of (1) the contours of property rights to both tangible and intangible property; (2) exceptions to contracts, including unconscionability, implied warranties, strict liability, mandatory disclosure, bankruptcy; (3) the replacement of caveat emptor with caveat venditor in win-win contracts; (4) market economies; (5) negative income tax; (6) voluntary consent to economic and other transactions; (7) prohibitions on slavery contracts; (8) minimum wage legislation. The chapter contrasts his account with fair starting-point theories of justice, including Ronald Dworkin’s theory. He also contrasts his account with Richard Posner’s account of the common law in terms of economic efficiency.Less

The Role of the Courts & the Popular Jurisprudence of Counterterrorism

Robert H. Wagstaff

in Terror Detentions and the Rule of Law: US and UK Perspectives

Politicians, moral philosophers and lawyers have all addressed the question of what role the courts should play in the global war on terror. Opinions range from no role at all (John Yoo, Richard and ... More

Politicians, moral philosophers and lawyers have all addressed the question of what role the courts should play in the global war on terror. Opinions range from no role at all (John Yoo, Richard and Eric Posner, John Ashcroft ,Viet Dinh) to a perverse role (Alan Dershowitz and torture warrants). Those who believe that the courts have an affirmative duty to address the basic principles of the Rule of Law and are the most competent to do so include Ronald Dworkin, Jeremy Waldron, David Dyzenhaus and Aaron Barak.Less

A Justice, a Judge, a Philosopher, and an English Professor

Bradin Cormack, Martha C. Nussbaum, and Richard Strier

in Shakespeare and the Law: A Conversation among Disciplines and Professions

This chapter is a transcript of a conference that took place at the University of Chicago Law School in May of 2009. Springing from a seminar of Shakespeare and the law taught by Richard Posner, ... More

This chapter is a transcript of a conference that took place at the University of Chicago Law School in May of 2009. Springing from a seminar of Shakespeare and the law taught by Richard Posner, Richard Strier, and Martha Nussbaum, the conference was a rekindling of the law-and-literature movement that seemed to them to have made little progress in recent years. It also includes Justice Stephen Breyer, the guest of the three professors and the selector of the plays that are discussed in the chapter: Hamlet, Measure for Measure, and As You Like It. The chapter, then, consolidates the conversation and discussion generated by this roundtable of thinkers regarding the relationship between law and literature, a timely conference that coincided with the release of the third edition of Judge Posner's Law and Literature.Less

Intention and the Allocation of Risk

Neil M. Gorsuch

in Reason, Morality, and Law: The Philosophy of John Finnis

In this chapter, originally delivered as a speech, Judge Neil Gorsuch discusses Finnis' gifts and generosity as a teacher before turning to examine his contributions to our understanding of the legal ... More

In this chapter, originally delivered as a speech, Judge Neil Gorsuch discusses Finnis' gifts and generosity as a teacher before turning to examine his contributions to our understanding of the legal concept of intent. In crime and tort, liability has often and traditionally depended on showing that the defendant intended to commit a legal wrong. Various theorists, however, have criticized this reliance on intent. Citing Finnis' work, Judge Gorsuch highlights some of the flaws of their criticism and defends the analytical and normative significance of intent. Analytically, Gorsuch argues, there is a difference between intending a consequence and hoping for or foreseeing a consequence. Normatively, he explains, our intentional choices shape who we are and reflect how we think of others.Less

Crimes, kickers and transaction structures

Jules L. Coleman

in Markets, Morals, and the Law

This chapter asks why it is necessary to have a criminal law at all — a question philosophers of law have largely ignored. Critics are quick to dismiss forms of strict liability as morally ... More

This chapter asks why it is necessary to have a criminal law at all — a question philosophers of law have largely ignored. Critics are quick to dismiss forms of strict liability as morally objectionable, as departures from the requirements of justice that are justifiable only in certain narrowly defined areas of law in which strict liability has strikingly positive effects on reducing the level of harmful activity. The prevailing view suggests that strict liability is normally indefensible because justice prohibits us from penalising people who cause harm through no fault of their own. The chapter presents a contrary view.Less

Introduction

in Constitutional Conscience: The Moral Dimension of Judicial Decision

In Marbury v. Madison, Chief Justice John Marshall justified the judiciary's exercising the authority to disregard a statutory command when, in the judges' opinion, that command contravenes the ... More

In Marbury v. Madison, Chief Justice John Marshall justified the judiciary's exercising the authority to disregard a statutory command when, in the judges' opinion, that command contravenes the Constitution of the United States. Marshall believed that the practice of judicial review rests not only on the structural features of the U.S. Constitution, but flows as well from the judge's individual obligations as a moral actor. One hundred ninety-nine years later, however, Richard A. Posner implied that a judge has no kind of moral or even political duty to abide by constitutional text. This book explores the debate about judicial review and argues that the key to understanding the moral dimension of constitutional decision is the demand it places on the conscience of the judge. It discusses what the author believes to be the most salient features of the moral circumstances in which a Supreme Court justice finds him- or herself when called upon to make a constitutional decision. Finally, the book examines whether American constitutionalism is a good idea.Less

Venus in Robes: RICHARD POSNER (1992), Sex and Reason

Martha C. Nussbaum

in Philosophical Interventions: Reviews 1986-2011

This chapter reviews the book Sex and Reason (1992), by Richard Posner. Sex is ubiquitous in American courts, as it is in American life. Judges must deal with it in civil, criminal, and ... More

This chapter reviews the book Sex and Reason (1992), by Richard Posner. Sex is ubiquitous in American courts, as it is in American life. Judges must deal with it in civil, criminal, and constitutional cases of many kinds; they are called upon to concern themselves with topics such as prostitution, homosexuality, contraception, nudity, child abuse, and erotic art. And yet, as Posner observes, judges often know very little about such topics. We all too often find opinions that combine naïveté with the puritanism and the moralism that are such a large part of the American cultural heritage. Prejudice, a lack of curiosity, flawed logic: all of these are depressingly common when judges confront the complexities of sex. Posner wishes to alter this situation. His book has three goals: to provide judges (and others) with information and arguments on sexual matters likely to come before the courts; to provide a comprehensive explanatory theory of sexual behavior, drawing both on economics and on evolutionary biology; and to advance a normative theory of sexual legislation that is “libertarian”.Less