Linguistic Defense and Offense

When I first wrote about linguistic self-defense (discussed in Liav Orgad’s book pp. 198-200) I had a conception of languages in danger, The most visible potential victim were the French in Quebec. But with the help of Charles de Gaulle, the Quebecois have held on well to their culture (majority at home, minority at large, but supported by a large nation in Europe). One form of linguistic self-defense I proposed at the time was insisting on speaking your language in commercial transactions. For the sake of profit, store keepers would play along. Also, public advertising is a critical mode of making a language seem like the background state of normalcy. The key case in Quebec, as I recall, was called Chaussures Brown Shoes. That was the way they wanted their sign to read. The Anglophones objected and lost

The Unmet Challenge of Criminal Theory

The last several decades have witnessed an outpouring of serious articles bringing to bear the methods of analytic philosophy to the issues of substantive criminal law. J. L. Austin, a philosopher and not a lawyer, may have been the first to demonstrate the potential of probing legal concepts such as mistake and accident, justification and excuse, for their philosophical potential. H.L.A. Hart carried forward the literature with several path breaking essays on criminal law. It is only in the last few years, however, that we have encountered an explosion of interest in the basic questions of criminal law. As the essays in this volume, as well as other works in progress, demonstrate, we now have a critical mass of scholars interested in the philosophical dimensions of punishment, self-defense, justification, excuse, omissions, and causation

Paradoxes in Legal Thought

Traditional legal thought has generated few anomalies, antinomies, and paradoxes. These factual and logical tensions arise only when theorists press for a complete and comprehensive body of thought. Discrete, unconnected solutions to problems and particularized precedents spare us the logical tensions that have troubled scientific inquiry. Anomalies arise from data that do not fit the prevailing scientific theory. Paradoxes and antinomies, on the other hand, reflect problems of logical rather than factual consistency. To follow Quine\u27s definitions, paradoxes are contradictions that result from overlooking an accepted canon of consistent thought. They are resolved by pointing to the fallacy that generates them. When we confront the special form of paradox called an antinomy, however, we have no such easy way out. The resolution of these more troubling contradictions requires reexamination of our fundamental premises. The solution typically represents a conceptual innovation, a new way of looking at the field of life that generates the contradiction. For these factual and logical puzzles to become significant in a body of thought, theorists must be committed both to the completeness and to the consistency of their theoretical accounts. The impulse toward completeness renders anomalies disturbing. Confronted by data not explainable by the prevailing theory, theorists must either confess the incompleteness and inadequacy of their system or revise their tools of analysis to accommodate the anomaly. For example, those committed to the economic analysis of law initially regarded comparative negligence as anomalous under their system. The criteria of crime, criminal responsibility, and punishment have yet to receive an adequate account in the literature of law and economics. If anomalies like these accumulate, they can, as Kuhn has taught us, overthrow the theory that causes them to stand out. Until that overthrow occurs, the recognition of anomalies bears witness to the importance of the theoretical enterprise. That anomalies are troubling reflects a shared commitment to the development of a complete theory, not merely the accumulation of discrete formulae for unrelated factual data. The commitment to the consistency of logical structures – as contrasted with the completeness of their theories – drives theorists to grapple with paradoxes and antinomies. This drive has been evident, as we shall see, in the philosophical tradition. Oddly, the commitment to consistency has generated little progress in legal theory. The Holmesian belief that the life of the law has been experience rather than logic provides a good excuse for ignoring seeming contradictions in the structures of legal argument. This aversion to logical thought is buttressed by the ubiquitous misreading of Emerson\u27s branding consistency as the hobgoblin of little minds. What Emerson deplored is the foolish consistency \u27 of those unwilling to change their views over time. Yet criticizing inflexibility provides no excuse for accepting contradictory positions. In some circles of supposedly critical thought, it is even fashionable to tolerate contradictions as an inescapable feature of legal thought. These antitheoretical and antirational strains in legal thought discourage dialogue and preclude advances in our understanding of legal phenomena. This Article commits itself to logical consistency as the indispensable foundation for effective dialogue and coherent criticism. Only if we accept consistency as an overriding legal value will we be troubled by the paradoxes and antinomies that lie latent in our undeveloped systems of legal thought. Grappling with uncovered paradoxes and antinomies will impel us toward consistent theoretical structures. None of this, I submit, requires us to suppress our sensitivities to policies, principles, or other questions of value

Two Modes of Legal Thought

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship. In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive propositions about the law, normative claims about what the law ought to be, and exhortations to decisionmakers to change the law are but examples of the variety of forms that appear in scholarly writing about the law. My initial task in this article is to work out some important distinctions among these verbal forms. Those distinctions generate a framework that I then use to make two more adventurous claims. I claim first that we can usefully distinguish between two modes of legal thought, which I shall call committed argument and detached observation ; and further, that whether we engage exclusively in one form of legal scholarship or another depends on our implicit assumptions about the nature of law. With these bolder theses defended, I then analyze how scholars can and do make persuasive claims in the mode of committed argument

The Universal and the Particular in Legal Discourses

My target in this article is a set of views that I shall call the functionalist perspective of comparative law. Of course, the word functionalist stands for a number of different theories. In order to be precise about the view that I oppose, I shall set my sights on the arguments developed in Otto Kahn-Freund\u27s inaugural lecture Comparative Law as an Academic Subject, published two decades ago

Disenfranchisement as Punishment: Reflections on the Racial Uses of \u3ci\u3eInfamia\u3c/i\u3e

The practice of disenfranchising felons, though decreasing, is still widespread. In this Article, Professor George Fletcher reflects on the use of disenfranchisement as punishment, the lack of a convincing theoretical justification for it, and its disproportionate impact on the African.American community. Fletcher presents a number of powerful arguments against the constitutionality of the practice, but he emphasizes that there is a deeper problem with disenfranchisement as punishment: It reinforces the branding of felons as an untouchable class and thus helps to prevent their effective reintegration into our society

The Fault of Not Knowing

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author\u27s view is that this distinction between objective and subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards are. This paper seeks to defend inadvertent negligence as a proper basis for blaming someone for causing harm, whether in the context of tort law or criminal law, whether the standard is regarded as objective or subjective. The first part of the paper, the historical part, engages in an extended analysis of Oliver Wendell Holmes\u27 writings on negligence. The second part of the paper, the philosophical part, addresses the general question of how people can be considered at fault and be blamed for not knowing critical attributes of their conduct, which might be either matters-of-fact or matters of moral evaluation

Prolonging Life

A physician decides not to prolong the life of a terminal patient. What are the legal consequences? Is it murder, akin to a gunman\u27s pulling the trigger? Or is the law more sensitive? Professor Fletcher proposes that a decision to interrupt life-sustaining therapy, such as that to turn off a mechanical respirator, should be classified as an omission, not an act. He arrives at this conclusion by analyzing the common sense usages of cause and permit. If the decision is an omission then the law must focus on the doctor-patient relationship to define legal consequences, allowing customary standards of the relationship to be the controlling criteria. Thus a heavy responsibility is placed on the medical profession to develop humane and sensitive standards for guiding decisions about prolonging life