Norms, Procedures, and Democratic Legitimacy

The overall thrust of the argument points in two opposite directions: it pleads for dimming the contrast commonly drawn between political philosophy and political science but calls for a more radical distinction between the activities of politics and of philosophy, and between its rationality and that of political mediation. Within the first strand of the argument, the fact-value problem is re-examined, whilst within the second strand - the central theme of the article - the operatively legitimizing source of political norms is viewed within a procedural locale that is recognizably democratic, in that its validation is a matter of opinion, of appraisal and reappraisal in and through civic activity itself, and not directly the work of extra-political doctrines that substantively predetermine it. Although not thus preconditioned, procedural democracy is portrayed as being governed by a cognitive and institutional 'space'in which the'conversion'of doctrinal'isms'issues in'performative principles, rather than a regime of pragmatic ad hocism .     

Regulation by generalization

Both criminal and regulatory laws have traditionally been skeptical of what Jeremy Bentham referred to as evidentiary offenses – the prohibition (or regulation) of some activity not because it is wrong, but because it probabilistically (but not universally) indicates that a real wrong has occurred. From Bentham to the present, courts and theorists have worried about this form of regulation, believing that certainly in the criminal law context, but even with respect to regulation, it is wrong to impose sanctions on a “Where there’s smoke there’s fire” theory of governmental intervention. Yet, although this kind punishment by proxy continues to be held in disrepute both in courts and in the published work, we argue that this distaste is unwarranted. Regulating – even through the criminal law – by regulating intrinsically innocent activities that probabilistically, but not inexorably, indicate not‐so‐innocent activities is no different from the vast number of other probabilistic elements that pervade the regulatory process. Once we recognize the frequency with which we accept probabilistic but not certain burdens of proof, probabilistic but not certain substantive rules, and probabilistic but not certain pieces of evidence, we can see that defining offenses and regulatory targets in terms of non‐wrongful behavior that is evidence of wrongful behavior is neither surprising nor inadvisable.     

Public servants or police soldiers? An analysis of opinions on the militarization of policing from police executives,law enforcement,and members of the 114th congress U.S. house of representatives

Despite the dramatic rise in use of militarized weapons, equipment, and tactics by police departments across the nation, no study has examined the opinions of those responsible for designing, funding, and implementing police militarization in the United States. Therefore this study collected and analyzed opinion data from 465 key stakeholders from the 114th Congress U.S. House of Representatives, law enforcement executives, and local police officers regarding police militarization. Results suggest that while most practitioners and policymakers favor police militarization, Congress and law enforcement differ in support of critical issues such as oversight of military procurement programs, use of surplus military weapons and vehicles, and overall support for the militarization of policing in the United States.     

The democratic polity's search for the knowledgeable public administrator: an argumentative essay

Today public administrators, as many others, desire to be known as professionals or those knowledgeable enough to carry out their tasks without outside interference. By examining their claims to have expertise to carry out their public tasks, we provide a critical evaluation of the professionalism of public administrators. Our argument is that public administrators may not have sufficient knowledge to carry out their public tasks without the knowledge (help) of others. Suggesting that public administrators need to have more “public” knowledge of the public interest, we suggest ways that they can become more knowledgeable and more compatible with the tenets of political democracy.     

A Reply to Five Friends

For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to this symposium on The Force of Law (Schauer 2015 ) have done just that, with varying degrees of agreement and disagreement, praise and criticism. But even critical commentary, and perhaps especially critical commentary, is evidence of serious engagement. More importantly, the commentaries contained here have advanced our understanding of law in valuable ways. I respond to each in this reply, but with full acknowledgment that my responses cannot do justice to the full breadth of their contributions and challenges. My hope is not that I will persuade readers that I am correct and my critics mistaken, but rather that the reader who absorbs both the challenges and my response will come away with a greater understanding of the issues that The Force of Law seeks to place on the agenda of contemporary jurisprudence.