On the Incompatibility of Political Virtue and Judicial Review: A Neo-Aristotelean Perspective

Part I of this essay outlines a neo-Aristotelean theory of political virtue, an instance of virtue generally, that serves as the basis of excellent citizenship in the polis. As such, political virtue contributes its share to the achievement of eudaimonia, or the fulfillment of an individual’s natural, human function. In fact, political virtue is especially important because people are political beings, i.e. they seek the good most comprehensively in the context of association with others. Therefore, Aristotle describes politics as the master science of the supreme good, because politics orders the community of the polis and thereby establishes the norms that shape people’s lives. The theory of political virtue outlined here is not prominently or even explicitly presented in Aristotle’s Nicomachean Ethics. However, the theory is a faithful interpretation, in that it is clearly implied by (or at least logically derived from) his most basic ideas. Prominent among them is the idea that the achievement of eudaimonia requires not only cultivation of virtuous dispositions, but action motivated by virtuous dispositions and guided by practical reason (phronesis). As a result, the achievement of eudaimonia depends, in part, upon engagement in ethically significant activity that contributes directly to the shape of the political community in which one lives. Part II asks whether this theory of political virtue is compatible with strong judicial review, i.e., the form of review that empowers courts to strike down legislation duly enacted by democratically chosen representative bodies. Since the theory of political virtue requires consensual and continuous decision-making, it is found incompatible with strong judicial review as a preliminary matter. In a more extended analysis, it is also found incompatible with both a pluralist-democratic defense of strong judicial review and a popular sovereignty defense, advocating strong judicial review based on originalist interpretation of the Constitution. From the neo-Aristotelean perspective, the former fails to appreciate the qualitative uniqueness of majoritarian representation as the embodiment of morally significant action. The latter fails to appreciate the importance of continuous political activity for the attainment of eudaimonia. As a result, the neo-Aritotelean theory of political virtue appears to interpose a genuinely normative objection to strong judicial review from the standpoint of virtue ethics

On the Incompatibility of Political Virtue and Judicial Review: A Neo-Aristotelean Perspective

Part I of this essay outlines a neo-Aristotelean theory of political virtue, an instance of virtue generally, that serves as the basis of excellent citizenship in the polis. As such, political virtue contributes its share to the achievement of eudaimonia, or the fulfillment of an individual’s natural, human function. In fact, political virtue is especially important because people are political beings, i.e. they seek the good most comprehensively in the context of association with others. Therefore, Aristotle describes politics as the master science of the supreme good, because politics orders the community of the polis and thereby establishes the norms that shape people’s lives. The theory of political virtue outlined here is not prominently or even explicitly presented in Aristotle’s Nicomachean Ethics. However, the theory is a faithful interpretation, in that it is clearly implied by (or at least logically derived from) his most basic ideas. Prominent among them is the idea that the achievement of eudaimonia requires not only cultivation of virtuous dispositions, but action motivated by virtuous dispositions and guided by practical reason (phronesis). As a result, the achievement of eudaimonia depends, in part, upon engagement in ethically significant activity that contributes directly to the shape of the political community in which one lives. Part II asks whether this theory of political virtue is compatible with strong judicial review, i.e., the form of review that empowers courts to strike down legislation duly enacted by democratically chosen representative bodies. Since the theory of political virtue requires consensual and continuous decision-making, it is found incompatible with strong judicial review as a preliminary matter. In a more extended analysis, it is also found incompatible with both a pluralist-democratic defense of strong judicial review and a popular sovereignty defense, advocating strong judicial review based on originalist interpretation of the Constitution. From the neo-Aristotelean perspective, the former fails to appreciate the qualitative uniqueness of majoritarian representation as the embodiment of morally significant action. The latter fails to appreciate the importance of continuous political activity for the attainment of eudaimonia. As a result, the neo-Aritotelean theory of political virtue appears to interpose a genuinely normative objection to strong judicial review from the standpoint of virtue ethics

Contracting in the Age of Smart Contracts

Smart contracts lie at the heart of blockchain technology. There are two principal problems, however, with existing smart contracts: first, the enforceability of smart contracts remains ambiguous. Second, smart contracts are limited in scope and capability barring more complex contracts from being executed via blockchain technology. Drawing from the existing literature on contracts and smart contracting, this Article suggests new approaches to address these two problems. First, it proposes a framework based on reliance-based contracting to analyze smart contracts. Second, the Article analyzes the seismic shifts in contractual disputes, and offers new insights into its features including decentralized decision-making, network-based dispute resolution, and extrajudicial enforcement of decisions. The Article concludes that users’ reliance should be the basis for analysis of smart contracts and its associated dispute resolution mechanism

Justice, community and obligation: a study of recent liberal political philosophy

Liberals disagree about the state's legitimate sphere of activity. Some emphasise individual liberty and self-determination, believing the requirements of these principles are best met by the free market. Social liberals argue that citizens are members of a political community, whose obligations are fulfilled through the state. How principles of justice are derived is a matter of controversy, but underlying them are certain ideas about citizens' relationships to the state and to each other. The theories of justice of Nozick, Hobhouse, Rawls and Walzer are compared. To what extent are citizens responsible for each other's welfare in contemporary liberal democracies? The state is characterized by Nozick as a protective association with the sole function of guaranteeing individual rights, and in which concern for others is a private matter; by Rawls as a cooperative association organised in such a way that the position of the least favoured is maximised; by Walzer as a community of shared understandings in which all are entitled to the goods necessary to sustain their membership; and by Hobhouse as a harmonious society of rational men in which individuals find fulfilment in the life of the community. I discuss political obligation, since how citizens are said to have obligations contributes to an understanding of descriptions of the state and the nature of the ties that bind citizens. Maclntyre suggests that individualism renders moral argument unintelligible. There is no way of deciding between the competing theories of Nozick and Rawls. Walzer believes that Maclntyre is mistaken in describing these disputes as a mark of incoherence, since they take place within the liberal tradition. I maintain that the differences within liberalism are so grave that it cannot be argued that we inhabit a world of shared values. The liberal democratic state cannot be described as the embodiment of community

Legislating Morality: Moral Theory and Turpitudinous Crimes in Immigration Jurisprudence

Congress could have framed the country’s immigration policies in any number of ways. In significant part, it opted to frame them in moral terms. The crime involving moral turpitude is among the most pervasive and pernicious classifications in immigration law. In the Immigration and Nationality Act, it is virtually ubiquitous, appearing everywhere from the deportability and mandatory detention grounds to the inadmissibility and naturalization grounds. In effect, it acts as a gatekeeper for those who wish to enter and remain in the country, obtain lawful permanent residence, travel abroad after admission, or become United States citizens. With limited exceptions, noncitizens cannot obtain, maintain, or expeditiously surpass temporary status or lawful permanent residence without avoiding “turpitudinous conduct.” This Article challenges the moral turpitude designation as a moral concept. Legal scholars, legislators, and judges have leveled an abundance of critiques against the moral turpitude designation, particularly for its vague nature. Absent from this discussion, however, is a dedicated analysis of moral turpitude as it relates to established moral frameworks. Rather than rely on the vast intellectual tradition regarding questions of morality and ethics, the courts have opted instead for legal insularity, developing a specious approach to moral turpitude that is utterly incoherent in moral terms. The result is an arbitrary and anachronistic approach to determining whether conduct is turpitudinous. Serious consideration of the designation vis-à-vis moral theory casts considerable doubt on the virtually inscrutable standards that have evolved within moral turpitude jurisprudence. Close analysis through the lens of moral theories, such as deontology, contractualism, and common morality, reveals why the crime involving moral turpitude should be eliminated from the country’s immigration laws. Under the pretense of protecting the country’s moral ethos, the legislature and courts have used the guise of morality to obfuscate an arbitrary mechanism of migration control. This Article demonstrates the limits of embedding explicit moral categories within the law and asserts that the judiciary has wielded morality as a proxy for its intent to exclude and remove broad swaths of noncitizens. Ultimately, a just immigration system must preclude the crime involving moral turpitude