Mainstream Legal Theory Research Articles

When is lack of emotion a problem for justice? Four views on legal decision makers’ emotive life

ABSTRACT Reason and emotion are often cast as opposites. Yet emotion comes in a wide array of manifestations and has a variety of relations with its supposed opposite. Understanding emotion better is key to grasping how jurisprudence casts the relation between psychology and judicial decision making. Jurisprudents disagree on whether and when (lack of) emotion is a problem for decision makers in the justice system. The aim of this paper is to shed light on unarticulated assumptions in mainstream legal theory concerning this disagreement. The paper plots the different positions jurisprudents hold concerning the role of emotion in judicial decision making, regardless of where they stand on matters such the nature of law. The paper substantiates the claim that legal theorists often take an irrationalist approach to emotion but occasionally develop an alternative account that is closer to a cognitivist approach, the prime example of which is the claim that equity requires practical reasoning. Emotions are then cast as skills to be appreciated. The paper concludes that jurisprudence adopts a simplistic view of emotion. The study of the role of emotion has been hampered by the tendency to view emotions reductively. My classificatory effort warrants the conclusion that lack of emotion – understood as a skill in cognitivist terms – constitutes a problem for justice.

Law’s Regret: On Moral Remainders and a Virtue-Ethical Approach to Legal Decision-Making

In his essay ‘Ethical Consistency’, Bernard Williams famously introduced the concept of a moral remainder, which points to the phenomenon of an in itself defensible decision that may nonetheless result in a moral cost that merits further attention. Williams discussed this concept mainly in the context of the private sphere and that of politics. Inspired by Williams, many scholars have discussed this concept and its related phenomenology in several other contexts, such as lawyering, health care, and military actions. It is striking that the concept of a moral remainder has rarely been discussed in the context of legal decision-making. In liberal legal orders that aim to comply with the norms of justice, the everyday practice of legal decision-making partly consists of judges making decisions that, although they may be legally justified, nonetheless negatively affect fundamental interests of the ‘losing’ party. How best to conceptually grasp this troublesome phenomenon is a question that mainstream legal theory has hardly grappled with, nor has the concept of moral remainder been seriously considered to be part of the answer. This article, by contrast, develops the claim that the concept of a moral remainder is highly relevant for both the theory and practice of judicial decision-making in a liberal legal order. First, the author offers an overview of the discussion of the concept of moral remainder within practical philosophy. Second, she addresses the question of why the concept of a moral remainder has hardly been dealt with within legal theory. Moreover, it will be argued that, despite the fact that postmodern accounts have indeed touched upon the troublesome phenomenology of legal decision-making, this concept is most naturally situated within a virtue-ethical approach to legal decision-making. Finally, the author will flesh out the main implication of incorporating the concept of a moral remainder within a virtue-ethical account of legal decision-making and show that this concept provides a valuable amendment to such an account—at least from the viewpoint of legitimacy in a liberal legal order.

What is Economic Law?

The paper revisits and elaborates on the improbable concept of “economic law” which originated in early twentieth-century debates in search of an legal political framework for a capitalist economy under democratic control. In analyzing its composite elements – “law” and “economic” – it becomes obvious how the connection of the two has always been the question rather than the answer. By placing the deconstruction of economic law in the context of state transformation and globalization, on the one hand, and mainstream legal theory with its tendency to “name” a legal field rather than to explore what this name can explain, on the other, economic law emerges as a critical tool and methodology. As such, it offers its services to the current renewal of “law & political economy” as it, too, seeks to uncover and render visible how law is implicated in the creation and perpetuation of social inequality and violence.

The Politics of Jurisdiction

Jurisdiction is a central concept in the framing of the legal world but it has received short shrift in mainstream legal theory. This article examines the prevailing conceptual forms of jurisdiction in order to retrieve space for the political. The study of jurisdiction is also the study of the political community that it invokes and authorises. The first part of the article examines the three forms that jurisdiction takes in contemporary scholarship (territory, community, governance) to show that each form overlooks some implication of the political community that is tethered to jurisdiction. The second part of the article flips the inquiry to demonstrate the oversight of jurisdiction in theories of sovereign exception. The emergent understanding of jurisdiction as political provides an anchor for the study of jurisdiction going forward and highlights the potential role for jurisdictional arrangements in contemporary public law and constitutional law settings.

Emmanuelle Tourme-Jouannet. What is a Fair International Society? International Law Between Development and Recognition

Does international have an answer to the question: what is a fair international society? In her insightful book, Emmanuelle Tourne-Jouannet interrogates in a systematic fashion diverse areas of international that touch upon or address, directly or indirectly, fairness, equity, or redistribution: from the of to minority rights to international economic law. By taking positive as the point of departure for an inquiry about global justice, Tourme-Jouannet departs, in a refreshing way, from attempts to extrapolate from mainstream legal theory an abstract conception of global justice. [W]hat is to be addressed here are not contemporary theories of justice and the philosophical questions that the topic raises �. [I]t is the aim to address them here from a different angle: from within legal practice, as it were ... I have opted for an approach based on existing legal practice, with a view to conceptualizing and questioning it�(at 3). For Tourme-Jouannet, the question about the fairness of international legal practice leads to a number of other legal-historical questions regarding the contemporary evolution of international law. The project is simply to begin by identifying the principles and legal practices relating to and recognition (ibid.). In her view, adopting a historical perspective, these practices - notwithstanding their differences - reflect a joint concern with achieving global justice over the years. In What is a Fair International Society?, Tourme-Jouannet reviews the history of international economic over the last decades. She disaggregates it into two strands of international - �the of development and the law of recognition, which are inextricably enmeshed in today's world that is postcolonial and post-Cold War. In her view, [t]hese twin characteristics explain why international society is also riddled with the two major forms of injustice that ... afflict national societies

Visionary Hope

Visionary Hope

Legal Positivism and the Limits of the Contemporary Legal Theoretical Discourse: A Comment on Nigel Simmonds

The paper is a comment on Nigel Simmonds’ recent legal theoretical efforts. It uses Simmonds’ works to bring into focus some of the problems with the contemporary mainstream legal theory. The neo-Fullerian character of Simmonds’ legal theory plays a central role in the analysis: it is argued that a neo-Fullerian legal theory has the best chance of reconstructing mainstream legal theory. It makes the paper critical of dominant forms of anti-positivism as well. The analysis is organized around three clusters of issues. First, the main arguments Simmonds uses against legal positivism are highlighted. Secondly, the prospects of the kind of anti-positivism represented by Simmonds are assessed. It will be based on an account of the discursive characteristics of contemporary legal positivism and, more generally, conceptual legal theory. Thirdly, an analysis of some of the underlying methodological and philosophical assumptions of Simmonds’ theory is provided. It seeks to bring into focus the problem of interpretivism.

Law in other contexts: stand bravely brothers! A report from the law wars

AbstractThis essay argues against the two pillars of current research on law and globalisation, from the perspective of legal theory and political philosophy: first, the distinction between ‘well-ordered’ and ‘not so well-ordered’ societies; second, the sociological model of the subject as pacified, fearful and isolated (to sum up, in harmony). It is argued that mainstream legal theory and political philosophy merely reflects the actual rules of the game of competition, dispute and conflict. In contrast, this essay takes sides with the anthropological and philosophical tradition that conceives the subject as antagonistic and in state of lack, profoundly concerned with the other, whom she imitates and whose standpoint she must be able to share if she is to make sense of the world. Furthermore, it is argued that transitivity or imitation lies at the very origin of conflict and dispute; lack and antagonism remain thus at the core of society, in spite of the surface appearance of harmony that characterises post-modern societies. Because of this, any general theory of law and society that wishes to be relevant at the time of globalisation must make the experience of antagonism and violence, motivated by imitation and envy, and its containment, its object of study. To do this, it must abandon the dualist conception of subjects and societies expressed in the distinction between ‘well-ordered’ (more violent) and ‘not-so-well-ordered’ (less violent) societies that has informed its investigation to this day, in order to declare in the most general terms a critique of violence from the standpoint of the victim, as of a piece with its demand for global social and political justice.

Canon Law and the Human Person

This article explores the unity of law and theology in the 1983 Code of Canon Law [hereinafter CIC-1983]. The unity has remained critical since canon law emerged in the ancient Church. From the origins of the primitive Christian communities through the patristic era, the Church manifested a tension between charism and office, spirit and law. The medieval canonists achieved a great synthesis of the reason of law and faith of theology. The unified theory helped to form the basis of the Western legal tradition. The Reformation focus on sola fide (faith alone) tended to sever the unity. With the Enlightenment, reason was declared independent from the unproven dogma of faith. Modern Western legal theory developed in accord with Enlightenment thought. As a result of canon law's function in the life of the Church, the continuing issue of the unity has produced two interrelated principles. Theology without law leaves the ecclesiastical community bereft of an ordered life. Law without theological meaning surrenders its moral persuasiveness and deteriorates into rigid legalism.Vatican II required a new universal law for the Church that avoided the pitfalls of both antinomianism and legalism. The Preparatory Commission for the CIC-1983 described canon law as a “sacred symbol.” When he promulgated the new Code, His Holiness John Paul II termed the legislation “the final document of Vatican II.” Affirming the unity of law and theology, the Supreme Legislator has drawn attention to the concept of “theological anthropology.” The phrase signifies the endeavor to uncover the fundamental elements of what it means to be human. In exploring the unity of law and theology, this article focuses on the relationship between canon law and theological anthropology. While obviously not intended as a repudiation of mainstream legal theory, the article also suggests that the unity may offer comparative insight to the secularity of the modern project.

Whatever Happened to 'Anti-Semitism'?: How Social Science Theories Identify Discrimination and Promote 'Coalitions' Between 'Different' Minorities

This Article shows how many -isms, such as anti-Semitism, sexism, and racism, are often intimately connected. This Article argues that the recent emphasis on the question of the relationship between forms of discrimination and coalitions between groups begs more fundamental questions of how we categorize discrimination in the first place. The Article contrasts two very different sets of approaches to discrimination. Atomized discrimination assumes those who discriminate always intend to harm someone they see as a woman, an African-American, a Jew, or some relatively particular other. Generalized discrimination, in contrast, occurs when those seen as part of some ingroup (such as those perceived as heterosexual white Protestant males free from disability) receive better treatment than anyone outside that ingroup. Sometimes this involves outgroup hostility: people detest anyone not like they are. Sometimes this reflects ingroup sympathy: people don't really dislike those unlike themselves, but they just overlook everyone else. Greater attention to generalized discrimination would have two practical payoffs: proof effects and coalition effects. The proof effects mean we'll make a more informed conclusion about whether impermissible discrimination occurred in a significant number of cases, particularly cases involving those employed by relatively small employers, small departments, and in homogenous settings. Generalized discrimination would help better identify discrimination even within the framework of existing antidiscrimination law and mainstream legal theory. Generalized discrimination, moreover, would also better identify discrimination in some cases than more radical concepts, such as intersectionality associated with Critical Race Theory. In addition, generalized discrimination would also enhance how we address discrimination in other ways, including mediation and arbitration of particular claims and public discussions of bias, such as the presidential conversation on race and bar studies of gender and racial bias. As individuals in groups would see how generalized discrimination operates, coalitions between such different groups would grow, and individuals might treat others more fairly. The prologue puts these rather abstract terms of engagement in concrete settings. Part One outlines how and when generalized discrimination would affect particular cases and promote coalitions between minorities. Part Two shows how attention to generalized discrimination would lead to better results in some court cases. Part Three shows how generalized discrimination fits within social science theories and research since at least the 1940's. In light of the social science evidence, Part Four elaborates how courts and various kinds of ADR should use evidence of generalized discrimination, including evidence of generalized nondiscrimination by defendants. Finally, Part Five considers barriers to seeing generalized discrimination in cases and, more broadly, barriers to coalitions between groups. Overall, the Article attempts to address these questions by supplementing legal doctrine with research and theories from psychology, sociology, economics, and legal theory, including more conventional theory and recent strands of Critical Race Theory and feminist legal theory.