Herzl on discrimination in Der Judenstaat

Theodor Herzl published his programmatic book The Jewish State in February 1896. Central to it was the discrimination (and hatred) commonly known as anti-Semitism. Herzl viewed anti-Semitism as the heart of the Jewish Question but also as the potential motivator for Jews to achieve a Jewish state. Herzl's analysis of anti-Semitic discrimination is in many aspects similar to present sociological theories of middle-class minorities. His discussion of the economic aspects is compared with Gary Becker's theory of discrimination, and similarities as well as differences are pointed out.     

Dan ?t’astny: The Economics of Economics

The Economics of Economics (2010) by Dan ?t??astny extends the economic approach of public choice and law and economics to see how economists behave so as to improve their well being in the world of uncertainty, scarcity and institutions. According to ?t??astny, economists have been adjusting their behavior to the changing institutional environment and, consequently, ended up policy irrelevant. The book review provides an assessment of the model ?t??astny employs. On the one hand, ?t??astny offers a looking glass that helps seeing the decision making process of an economist from a price theory perspective. I suggest, on the other hand, that the model would be more accurate had it not considered preferences constant. In fact, the evolution of economists?? preferences and the changing sense of praiseworthiness is what the model should try to explain.     

The morality of law and economics

The moral heart of normative law and economics is efficiency, especially dynamic efficiency that takes incentive effects into account. In the economic theory, justificatory argument is inherently at the institutional- or rule-level, not an the individual- or case-level. InMarkets, Morals, and the Law Jules Coleman argues against the efficiency theory on normative grounds. Although he strongly asserts the need to view law institutionally, he frequently grounds his criticisms of law and economics in arguments from little more than direct moral intuition about individual cases. He evidently holds that consent provides a better normative basis for law than does efficiency and he uses consent arguments to attack recommendations from scholars in law and economics. His own chief contribution, however, is to law and economics rather than to any alternative theory.     

Looking for the Nature of Law: On Shapiro’s Challenge

This article critically focuses on the methodological aspects of Scott Shapiro??s book Legality. Indeed Shapiro??s book sets out several original theses about not only the nature of law and the main problems of jurisprudence, but also about how the nature of law can be discovered by jurisprudence. In this sense, the method of inquiry adopted by Shapiro can be considered as one of the most challenging outcomes of his research. The article is divided into two parts. In the first two sections I shall analyze Shapiro??s jurisprudential approach by focusing on its resort to metaphysical vocabulary, conceptual analysis, constructive reasoning, and institutional explanation of law. In the following sections I will consider some of the problems that this approach gives rise to, and outline an alternative view on the nature of law stimulated by the discussion of Shapiro??s work.     

Citizenship and the Corporation

This article investigates the contribution made by the concept of citizenship to contemporary understandings of the widely held business corporation. Because the conventional economic understanding of corporations and corporate law cannot fully explain the nature of the business corporation and the purposes of corporate law, the framework within which teachers and students of corporate law approach the corporation must be enlarged. By looking at the corporation exclusively through the lens of economics we are unable to account for all features of the corporation and corporate law, and we risk mistaking the purpose of these features, or wrongly supposing that they serve no purpose. The article proposes that through resort to a distinct set of conceptual tools—the concept of citizenship, borrowed from political theory—we can attain a fuller comprehension of the meaning of the corporation.     

Gardner on Legal Reasoning

In Chapters 2, 3 and 7 of his new book, Law as a Leap of Faith, John Gardner provides the elements of an account of legal reasoning. It is on the basis of this account that Gardner defends or supports some of the most important theses of his book, viz. theses pertaining to how law can be made, to the relation between law and morality, and to the legitimacy of judicial law-making. A central element of Gardner’s account is a distinction (suggested originally by Joseph Raz) between two forms of legal reasoning, namely, reasoning about the law and reasoning according to law. In this paper I intend to describe and evaluate Gardner’s account. Among the critical remarks that will appear in the paper is the claim that Gardner’s concept of reasoning according to law is overly inclusive.     

The influence of Austrian humanism in Theodor Herzl's vision of a Jewish state

Theodor Herzl's thought was a product of an austrian political and humanist culture. His political values were formed within a multinational, cameralist tradition that at its best bred a tolerance for differing persons and cultures but isolated the private individual from a responsible role in his or her own governance. The problem of governmental power in relation to the members of its society became for Herzl a conundrum whose solution was a redistribution of that power downward. Herzl's depiction of the future Jewish state in his 1896 The Jewish State and in his 1902 novel Old-New Land offers the vision of a privatized society in which each citizen may eventually become a cooperative owner. An examination of Herzl's vision reveals a thread of Austrian humanistic concepts and values that have characterized social-economic thought in Austria since the Enlightenment.     

Max Weber on the Labour Contract: Between Realism and Formal Legal Thought

Although Max Weber's review essay of the first part of Philipp Lotmar's The Labour Contract may appear peripheral to his overall contribution to legal sociology, it contains important insights on the relationship of law to economics, the utility of sociological empirical research for jurisprudence, the epistemological gap between 'legal dogmatics' and the sociology of law, and the fundamental distinction between state and non-state law in properly understanding the developmental logic of labour law.
In the review, far from appearing as a rigid partisan of positivistic legal formalism, Weber admits of a kind of 'legal pluralism' as a necessary path to the sociology of law, and allows some measure of realism, when celebrating Lotmar's analysis of the social facts of law as a precondition for proper juristic treatment of the labour contract. Nevertheless, Weber remained distrustful of legal realism which, for him, was founded on an epistemological confusion between 'is' and 'ought'.     

Putting interpretation in its place

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.     

The Ultimate Force of the Law: On the Essence and Precariousness of the Monopoly on Legitimate Force

In his new book, Fred Schauer adopts a prototypical approach to the law in order to reestablish the importance of “The Force of Law”, and I strongly support his claim that there are interesting things to be said about the relationship between law and force. One aspect concerns the special kind of force to which the law is related. In the tradition of political philosophy, this kind of force has often been characterized with the state's monopoly on legitimate force. Whereas the essay will support the idea that the law has a monopoly of force, it will challenge the idea that it is its legitimacy that makes it characteristic. It is a monopoly not so much on legitimate, but on ultimate force. The robustness of the force the law is—prototypically—related to, however, should not obscure the fact that the relation between law and force is quite delicate and precarious. Three strategies of the law to manage this fundamental precariousness are pointed out.     

Crime, Freedom and Civic Bonds: Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society.     

In Search of the Nature and Function of Fiduciary Loyalty: Some Observations on Conaglen's Analysis

Fiduciary law is in a state of flux. We know that the core obligationof a fiduciary is an obligation of loyalty, but we are lesssure what ‘fiduciary loyalty’ encompasses. We knowa fiduciary has duties not to profit or put himself in positionsof conflict, but how these duties interact with other non-fiduciaryduties (whether tortious or contractual or otherwise) is moredifficult to discern. Against this background, Conaglen hasmade a recent contribution to our understanding of the fiduciarydoctrine. He suggests that fiduciary loyalty offers a subsidiaryand prophylactic form of protection for non-fiduciary duties.This article considers his analysis, and argues that it is notsupported by case law and creates a number of inexplicable implicationsfor the fiduciary doctrine. In view of these difficulties, Conaglen'sanalysis should be rejected.     

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.”     

Autonomy and private ordering in contract law

This essay reviews Michael J. Trebilcock's book,The Limits of Freedom of Contract (Cambridge, MA: Harvard University Press, 1993), examining crucial and controversial social issues within the rigorous framework of the law and economics of contract. The idea that private markets are the primary institutions for the allocation of limited resources is central to any private ordering model of contract law. Yet such a premise leaves a number of fundamental questions unanswered. Trebilcock is critical of the insufficiency and ambiguity of current contract theory in addressing fundamental legal issues relating to the limits of freedom of contract. Pushing the frontiers of current legal theory, Trebilcock revisits the slippery notion of freedom of contract and tests the actual reach of economic analysis in providing a coherent answer to compelling social questions. The author pursues his ambitious task by examining the conclusions reached by competing paradigms of analysis. In spite of his declared trust in the economic approach to law, Trebilcock pays close attention to alternative analytical traditions, comparing the conclusions of various intellectual perspectives with those suggested by an economic framework of private ordering. The book objectively examines strengths and weaknesses of competing views, affording the reader a balanced position from which to conclude for herself, by illustrating the practical implications of the various approaches. In a number of instances, Trebilcock shows how different theoretical premises may indeed be conducive to similar institutional outcomes.Associate Professor of Law, George Mason University. The support of the Sarah Scaife Foundation and of the John M. Olin Foundation is gratefully acknowledged, as are the helpful comments of Jonathan C. Harris and Charles K. Rowley. Extensive remarks received from Michael J. Trebilcock prior to publication allowed me to remedy earlier omissions.     

Excellence in Psychological Injury and Law: Book Review of Motor Vehicle Collisions by Duckworth, Iezzi, and O’Donohue (2008)

In several ways, the book on motor vehicle collisions by Duckworth, Iezzi, and O’Donohue (2008) breaks new ground and should be considered a must-read for workers in the area of psychological injury and law. The editors have assembled a team of expert authors who have cogently analyzed the scientific evidence in the area of motor vehicle collisions and their aftermath, while calling for more research. The book is replete with information that will help practitioners understand and deal with cases involving conditions such as chronic pain, posttraumatic stress, and traumatic brain injury. Practitioners will learn about complications in such cases, including threats to validity and legal aspects. The inclusion of chapters from a medical perspective is a welcome innovation. The book is only lacking in that, although assessment is considered throughout, chapters specifically addressing this topic are not included. The book review concludes that the Motor vehicle collisions book by Duckworth et al. should be included as part of the growing list of excellent resources in the area of psychological injury and law.     

Sidgwick's Utilitarian Analysis of Law: A Bridge from Bentham to Becker?

Jeremy Bentham's utilitarian analysis of crime and punishmentis regularly characterized as an inspiration for the economicanalysis of law, whereas Henry Sidgwick has been all but ignoredin the discussions of the history of law and economics. Sidgwickis well known as the godfather of Cambridge welfare economics.Yet, as we will show, his utilitarian analysis of issues inproperty, contract, tort, and, criminal law reflects themesnow associated with the Chicago approach and advances on Benthamin multiple ways—including through the use of marginalanalysis—making him a bridge on the road from Benthamto Becker.     

Christian Wolff on Subsidiarity, the Division of Labor, and Social Welfare

In more than one way Christian Wolff (1679-1754) has provided the grammar for modern social sciences in general, but economics in particular. Next to his path-breaking contributions to philosophy and international law, which are generally recognized, he has also pioneered the social sciences and provided the notions with which modern economics is still largely working. This is important also for modern law and economics research, since Wolff conceived of both law and economics still largely as one discipline and therefore was able to integrate naturally what has today to be integrated conscientiously, and with effort.     

Why Tolerate Conscience?

In Why Tolerate Religion?, Brian Leiter argues against the special legal status of religion, claiming that religion should not be the only ground for exemptions to the law and that this form of protection should be, in principle, available for the claims of secular conscience as well. However, in the last chapter of his book, he objects to a universal regime of exemptions for both religious and secular claims of conscience, highlighting the practical and moral flaws associated with it. We believe that Leiter identifies a genuine and important contemporary legal and philosophical problem. We find much to admire in his reasoning. However, we raise questions about two claims that are crucial for his argument. The first claim is that it is not religion as such, but conscience that deserves toleration and respect. The second claim is that respect for religion and conscience demands ‘principled toleration’ but does not entail stronger policies of legal exemptions. Against the first claim, we argue that Leiter does not successfully distinguish religious belief from secular conscience and morality; and he does not explain why secular conscience (which shares many of religious conscience’s epistemic features) deserves respect. Against the second claim, we argue that the most promising theories of legal exemptions are not classical theories of liberal toleration.     

Etienne Laspeyres' History of the Economic Thought of the Netherlanders: A Law & Economics Classic?

Etienne Laspeyres (1834–1913) is today best known for the price index number formula named after him, but arguably his main contribution to economic literature is his Geschichte der Volkswirthschaftlichen Anschauungen der Niederländer und ihrer Litteratur zur Zeit der Republik (1863). This sketch sets out to consider whether this work, the contents of which will be briefly outlined and placed into context, can be considered a Law & Economics classic, in the sense of the biographical part of the Elgar Companion to Law and Economics (1999), as well. While interesting in its own right, the discussion of this question also serves as an inroad into the discussion of exactly what type of combination of law and economics is necessary to be considered part of Law & Economics as a specific mode of scholarly inquiry.     

‘Mutual aid is present in every crisis’: An Interview with Dean Spade

The Covid-19 pandemic unravelled a crisis of the modern state, and its legal institutions on the one hand, and on the other hand of our interpretive frames—both philosophical and scientific. It is here that the idea and practice of mutual aid gains significance, both to think about how we can respond to acute crises of planetary scales as well as to the crisis of critique in the discipline of law. The task of mutual aid is not to rehabilitate law out of its crisis or to restore conditions and systems back to a state prior to a crisis. This is because, as Dean Spade says in this interview, ‘they are not broken systems needing to be fixed. They are working exactly as they were designed to work, constantly sharpening violence against targeted populations and enriching a very few people.’ Spade—Wismer Professor of Gender and Diversity at the Seattle University School of Law and a founder of the Sylvia Rivera Law Project—is a key scholar-activist voice on mutual aid in North America and Europe. He is author, most recently, of Mutual Aid: Building Solidarity During this Crisis (And the Next). In this conversation with Oishik Sircar, Spade discusses his theoretical and political influences, how he relates the idea of crisis to critique, his sobering assessment of the limitations not only of law reform but of the role of legal education in radical transformation, his own understandings of mutual aid, his favourite words, why and how he does not see himself only as a legal scholar-activist, and his vision of hope and hopelessness in times of acute and intense crises.