The Role of the Jurist: Reflections around Radbruch

Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well‐being or worth of law as a practical idea? This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law.     

What Is Transnational Law?

Is it important to conceptualize transnational law and “map” it as a new legal field? This article suggests that to do so might help both juristic practice and sociolegal scholarship in organizing, linking, and comparing disparate but increasingly significant types of regulation. To explore the idea of transnational law is to raise basic questions about the nature of both “law” and “society” (taken as the realm law regulates). This involves radically rethinking relationships between the public and the private, between law and state, and between different sources of law and legal authority. Taking as its focus Von Daniels's The Concept of Law from a Transnational Perspective and Calliess and Zumbansen's Rough Consensus and Running Code (both 2010), the article considers what approaches may be most productive, and what key issues need to be addressed, to make sense of broad trends in law's extension beyond the boundaries of nation‐states.     

Alexy on Necessity in Law and Morals*

Robert Alexy has built his original theory of law upon pervasive claims for “necessary” features of law. In this article, I show that Alexy's claims suffer from two difficulties. First, Alexy is never clear about what he means by “necessity.” Second, Alexy writes as if there have been no challenges to claims of conceptual necessity. There have been such challenges and Alexy needs to answer them if his project is to succeed.     

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework.     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.     

On Two Distinct and Opposing Versions of Natural Law: “Exclusive” versus “Inclusive”

Abstract. This paper takes the dichotomy between “exclusive” and “inclusive” positivism and applies it by analogy to natural‐law theories. With John Finnis, and with Beyleved and Brownsword, we have examples of “exclusive natural‐law theory,” on which approach the law is valid only if its content satisfies a normative monological moral theory. The discourse theories of Alexy and Habermas are seen instead as “inclusive natural‐law theories,” in which the positive law is a constitutive moment in that it identifies moral rules and specifies their meaning. The article argues that inclusive theories of natural law are better suited to expressing an authentic “republican” attitude. *

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Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.     

Mobilizing Law in Latin America: An Evaluation of Black's Theory in Brazil

This research addresses two separate but related questions. First, to what extent are sociological theories proposed to explain legal behavior in Western societies applicable to non‐Western contexts? And second, to what degree is Black's theory of law generalizable, as he contends, “across time and space?” Our research merges these questions by exploring the applicability of Black's theory in a Latin American context. Data collected from a nationally representative survey in Brazil suggest support for Black's propositions regarding the impact of vertical, horizontal, cultural, and normative status on the likelihood of mobilizing the law, as well as the feasibility of using his framework for understanding legal behavior in non‐Western settings. Our discussion considers implications and directions for future analyses in both the Brazilian and cross‐cultural contexts.     

Rights and Resources—Libertarians and the Right to Life

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.” The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)     

Packer in Context: Formalism and Fairness in the Due Process Model

Herbert Packer's The Limits of the Criminal Sanction (1968) has spawned decades of commentary. This essay argues that Packer's two‐model conceptualization of the criminal process is best understood within his professional milieu of doctrinal legal scholarship and the political context of the Warren Court revolution. Within this context, the essay suggests a distinction between two due process visions: formalism and fairness. This distinction is useful for illuminating debates and decisions on criminal procedure matters in the Supreme Court such as Terry v. Ohio (1968) and Apprendi v. New Jersey (2000) . I conclude by encouraging sensitivity to legal and historical context in future commentary on Packer's framework.     

Final Notes on the Sadvitīyaprayoga

The following response first points out the obvious methodological disadvantages of Oetke’s decline to use both primary and secondary sources for his interpretation of the sadvitīyaprayoga (sp). Oetke believes that he is able to provide an “objectively adequate” presentation of the sp and describe “the objective properties” of its content without taking the historical context into account. By divorcing meaning from (historical) context, he distorts the presumed original meaning and intention of the sp, and superimposes on it an anachronistic concern with what he calls “the extrapolation principle.” The second part of the response explores the usage of the term sapak?a as a collective term.     

Law and Ojibwe Indian “Traditional Cultural Property” in the Organized Resistance to the Crandon Mine in Wisconsin

Section 106 of the 1966 National Historic Preservation Act (NHPA) requires that federal agencies “must take into account” the impact of their regulatory actions on historical properties, among them the “traditional cultural properties” of American Indian tribes. Conceiving of tribes' own social practices in terms of property creates the possibility for making claims about its loss for tribes, but it also problematizes their cultures' inherent dynamism that implicates its putative authenticity. This article offers commentary on the implications of practicing a form of action anthropology for the concept of culture via discovery and explication of such property under the NHPA. The context is a small American Indian community's effort to resist the development of a copper‐zinc mine adjacent to its reservation, on land that holds significant meaning for the community.     

Alf Ross on the Nature of Law

In his work, On Law and Justice, Alf Ross sought to explain law in scientific/empirical terms, in terms that would require no recourse to what he called “metaphysics” or “idealism.” The result is a sort of translation of legal rules and official actions into propositions of behavior, predictions of behavior, and shared ideology. The present work raises questions about the tensions within Ross's work(s), and discusses the places where Ross's analysis seems to fall short of its ambitions. In the course of the discussion, the article considers issues relating to legal mistake, explanations of judicial behavior, and different types of normativity.     

Global standards and outcomes of a legal education: how rubrics can help to deliver objectivity,transparency, verifiability and consistency

Rubrics may be time-consuming to create but they are superior to the usual method of evaluation: a number scrawled at the bottom of an essay without any context, feed-back or feed-forward. The author has used rubrics at Kuwait International Law School since 2012 and found them useful in at least four ways: they allow students to understand what is expected of them before they attempt a task; they take the “mystery” out of marks; they encourage fairness and promote a culture of trust between student and teacher; and they allow the teacher to engage in post-task meaningful discussions with students – they create “teaching moments”. Grading becomes more transparent and the faculty becomes more accountable to their students. A group of law deans adopted the “Singapore Declaration on Global Standards and Outcomes of a Legal Education” in 2013. This article addresses how the values in that Declaration are directly met by the use of rubrics. Transparency, accountability and authenticity in law teaching are all part of the Declaration: this article argues that rubrics deliver all three. The article addresses the research behind rubrics, the connection between the Singapore Declaration and rubrics and some “lessons learnt” from the author’s teaching experiences.     

Why Should Justice Be Seen to Be Done?

A well-known maxim instructs that justice should be seen to be done. When “seen” is understood in the sense of “observed”, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem,” the maxim is more puzzling, since it is not obvious why courts should concern themselves with people's perceptions that justice has been done. This article addresses this issue, with a particular focus on the social and other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. The article draws on empirical studies in social psychology that show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to cooperate with them, and to obey the law out of an internalized sense of obligation. The article explores the moral significance of these empirical findings, arguing that it would be superficial to see them as a recipe for social stability. The deeper truth conveyed by the empirical research is that relating to people in ways that are widely perceived to be fair is a way for authorities to engage people's moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest so as to do what is right. This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice.     

Conversational Implicatures and Legal Texts

Legal texts are often given interpretations that deviate from their literal meanings. While legal concerns often motivate these interpretations, others can be traced to linguistic phenomena. This paper argues that systematicities of language usage, captured by certain theories of conversational implicature, can sometimes explain why the meanings given to legal texts by judges differ from the literal meanings of the texts. Paul Grice's account of conversational implicature is controversial, and scholars have offered a variety of ways to conceptualize implicatures and Grice's maxims of conversation. Approaches that emphasize the systematic nature of implicatures can provide explanatory accounts of the gap between literal meaning and the meaning communicated in the text. For example, a theory of scalar implicature, a type of generalized conversational implicature, can account for the application of the interpretive principle known as ejusdem generis, which narrows the scope of “catch‐all” clauses located at the end of lists of items. Despite the availability of such theories, some scholars have argued that conversational implicatures are not applicable to legislation. The arguments, based primarily on the uniqueness of the legislative context and its noncooperative nature, though, do not establish the inapplicability of conversational implicatures to legislation.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

A polychromatic turn in corruption research?

Arnold Heidenheimer's last paper features an imaginative attempt to elaborate on his well-known “black-gray-white corruptio” typology by introducing metaphoric elements of color. How might those ideas work in practice? This article develops three specific questions that could guide further research on that question. The first involves an extended historical and etymological inquiry sufficient to bring out the diverse origins and referents of “corruptio” as a term of analysis; the second, exploring ways to extend the concept of corruption--typically applied to the realms of government and politics--to business and to the growing numbers of ways in which businesses and states interact; and third, attempting to draw more precise distinctions among lobbying, illegal political finance, and political corruption. The discussion concludes with a first sketch of a model drawing those three lines of inquiry together.     

What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's “Critical Legal Histories”

For more than twenty‐five years, Robert Gordon's “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon's essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon's articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal‐historical analysis of the resultant stress on the contingency and complexity of social life.