The Moral Menace of Roman Law and the Making of Commerce: Some Dutch Evidence

Did Roman law represent a kind of moral menace in premodern Europe, encouraging commercialism, greed, and exploitativeness, and fostering a lifeless rationalism ? In one version or another, this idea has been accepted by Europeans for centuries. Petrarch was already warning his readers in the Middle Ages that the practice of Roman law was a nursery of corrupt and mercenary values;\u27 and in the early-modem period many Europeans took the same view. Even in modem times, some of our greatest legal historians have put their authority behind the idea that Roman law was somehow morally menacing. The most famous scholarly version of the idea came from Heinrich Brunner, who, around the turn of the century, described the spread of Roman law through medieval and early-modem Europe as the spread of destructive infections. But Brunner was not the only major scholar to mount this sort of claim. Max Weber, to choose the most important example, also ascribed destructive impact to the spread of rationalistic Roman law, though his tone was of course more sober than Brunner\u27s; and the same idea left its mark on the writings of Karl Marx and Ferdinand Thnnies, among others.\u27 The idea has had a life in modem politics too. Through Marx, Engels, and Proudhon, it established itself in the general lexicon of socialist thought on the rise of capitalist society. Not least, it made its way into the ideological underworld of the German far right wing: Point 19 of the Nazi party program denounced Roman law as a vector of the materialistic world-order and demanded its elimination

Between Self-Defense and Vengeance/Between Social Contract and Monopoly of Violence

The political theory we choose, as George Fletcher has insisted, will invariably shape our answers to innumerable questions about what should be punished, when nominal violations are justified, and when wrongdoing should be excused. Criminal law is not just an exercise in the identification and punishment of bad acts. It is an application of state power. This means that our sense of the proper scope and function of state power will inevitably dictate much of our attitude toward criminal law. It also means that a true criminal law scholar (at least one who aspires to be like George Fletcher) must be prepared to put in some long hours working through the problems of political philosophy. Well, few of us can aspire to do work as sage as George\u27s. Nevertheless, in this essay, doing my best to be like George, I am going to try to connect some of the problems of criminal law to larger problems of political theory. In particular, I want to comment on the part played, in both fields, by the tension between selfdefense and vengeance

The Hunt for Truth in Comparative Law

In this response to Pierre Legrand\u27s dense and provocative account of my differences with James Gordley, I express some gratitude for Professor Legrand\u27s kindness, some dismay at his account of Gordley, some uneasiness about the use of literary theory in comparative law, and not least my admiration for Legrand\u27s deft and inventive writing. While I gladly acknowledge that there is a kinship between his attitude toward scholarship and my own, I insist that I have by no means given up on the hunt for truth

The Two Western Cultures of Privacy: Dignity versus Liberty

In every corner of the Western world, writers proclaim privacy as a supremely important human good, as a value somehow at the core of what makes life worth living. Without our privacy, we lose our very integrity as persons, Charles Fried declared over thirty-five years ago. Many others have since agreed that privacy is somehow fundamental to our personhood. It is a commonplace, moreover, that our privacy is peculiarly menaced by the evolution of modem society, with its burgeoning technologies of surveillance and inquiry. Commentators paint this menace in very dark colors: Invasions of our privacy are said to portend a society of horror, to injure [us] in [our] very humanity, \u27\u27 or even to threaten totalitarianism, and the establishment of law protecting privacy is accordingly declared to be a matter of fundamental rights.6 It is the rare privacy advocate who resists citing Orwell when describing these dangers

Book Review: Hiding from Humanity: Disgust, Shame, and the Law

This is a book by a philosopher, on a subject of urgent importance to legal scholars. Yet the truth is that most legal scholars have not understood how urgent that subject is. The book is about the psychology of the darker and uglier emotions in the law: shame and disgust. Legal scholars have certainly had plenty to say about this topic. There has been a steady flow of literature on the emotions and the law, and in particular on shame and disgust, for the past decade or so.\u27 Nevertheless, much of the legal debate has revolved around problems of strikingly minor importance in American criminal justice. In particular, we have had a lot of literature on a few colorful shaming penalties, like sentencing businessmen who urinate in public to scrub the streets with toothbrushes, or sentencing shoplifters to wear T-shirts announcing their offenses to the world.\u27 It is no surprise that criminal law professors enjoy debating these shaming penalties - call them T-shirt and bumper-sticker sanctions. They are tailor-made for discussions of familiar classroom topics like communitarianism and norms. Most of all, they make everybody titter. Who can resist that