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.”     

Foucault on “Avowal”: Theatres of Truth from Homer to Modern Psychology

FOUCAULT, MICHEL. 2014 . Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice . Ed. Fabienne Brion and Bernard Harcourt, trans. Stephen Sawyer. Chicago, IL: University of Chicago Press. Cloth $35.00, E‐book $7.00 to $30.00. The publication of a previously unknown set of lectures delivered by Foucault in 1981 at Louvain's criminology institute constitutes a major revelation for legal and criminological scholars (Wrong‐Doing, Truth‐Telling: The Function of Avowal in Justice, 2014). The lecture material includes an extended discussion of the techniques used by Oedipus to establish the truth of his familial crime, a reflection on the beginnings of the inquisitorial justice system (which Foucault here argues paved the way for the scientific revolution), and analyses of contemporary forensic confessions. Throughout these meticulously edited lectures, the scientific and philosophical “inquiries” that revolutionized modern European knowledges are shown to be rooted in embodied practices of confession and avowal that go back to ancient Greece.     

Universal Legal Concepts? A Criticism of “General” Legal Theory

Abstract. General theory of law (general jurisprudence, allgemeine Rechtslehre) has often claimed to deal with general or universal concepts, i.e., concepts which are deemed to be common to any legal system whatsoever. At any rate, this is the classic determination of such a field of study as provided by John Austin in the nineteenth century—a determination, however, which deserves careful analysis. In what sense, indeed, can one assert that some legal concepts are common to different legal systems? And, above all, in what sense can one assert that some concepts are common to different languages and cultures? My paper sets out to discuss such questions—although, obviously, they are too complicated to be answered in a single paper. The first section reconstructs the Austinian argument for general jurisprudence by placing it in its historical context. The second section tries to apply to legal concepts some suggestions derived from the contemporary debate on conceptual relativism. The third section, returning to the Austinian problem, comes to the following conclusion: Even if conceptual relativism were true and there were no general or universal legal concepts, this would not invalidate in any way the didactic and scientific value of (general) theory of law.     

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 “END” OF MARRIAGE*

This article addresses four different meanings of the “end” of marriage. It rejects the broad interpretive assertion that Lawrence v. Texas and Goodridge v. Department of Public Health signal the destruction of the institution of marriage, though both are criticized for politicization and feeble legal analysis. Those decisions have provoked a backlash that may contribute to a rediscovery of and re‐valuation of the importance of the institution of (conjugal) marriage, as passage of state marriage amendments suggests. If Goodridge and Lawrence show that genderless unions are the ultimate form of marriage, they would lead to the end of democratic society as well as of the institution of marriage. The fragmentation of marriage by reduction to functional relationships is myopic. While current developments may make it harder for the institution of marriage to thrive, the institution of marriage is “here to stay.”     

On Logic in the Law: “Something,but not All”

Abstract. In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the “logical theology” of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of “axioms and corollaries”; and this element of truth is not obviated by the more powerful logical techniques that are now available.     

Enacting the “Incomprehensible China”: Modern European Jurisprudence and the Japanese Reconstruction of Qing Political Law

The great ambition of Japanese colonialism, from the time of its debut at the end of the nineteenth century, was the reformulation of Chinese law and politics. One of the most extraordinary examples of this ambition is The Administrative Law of the Qing Empire [Shinkoku Gyōseihō], a monumental enterprise undertaken by the Japanese colonial government in Taiwan intended not only to facilitate Japanese colonial administration of Taiwan but also to reorder the entire politico‐juridical order of China along the lines of modern rational law. This article examines the legal analysis embraced in The Administrative Law of the Qing Empire and recounts its attempt to reconstruct the Qing's “political law” (seihō) by a strange, ambiguous, and hybrid resort to “authenticity.” The strangeness of this Japanese colonial production comes from Japan's dual position as both colonizer of Taiwan and simultaneously itself colonized by “modern European jurisprudence”(kinsei hōri). In uncovering the effects of modern European jurisprudence on the Japanese enterprise, we will discover Japan's pursuit of its own cultural subjectivity embedded in The Administrative Law of the Qing Empire, epitomizing the campaign of national identities observable in the process of East Asian legal modernization.     

Machiavelli,Guicciardini and the “Governo Largo”

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.     

One Myth of the Classical Natural Law Theory: Reflecting on the “Thin” View of Legal Positivism

Much controversy has emerged on the demarcation between legal positivism and non‐legal positivism with some authors calling for a ban on the ‐as they see it‐ nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner 2001 , 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.     

Schauer's Anti‐Essentialism

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties (a position he calls legal anti‐essentialism), and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti‐essentialism is a defensible position fails, because his one main argument (the cognitive science argument) is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument (the family resemblance argument) is false.     

Approaches to Liberty. Outline for a “Methodological Communitarianism”*

Abstract. In this paper, the Author gives an account of the French perspective on the debate between an “individualist” and a “communitarian” conception of liberty. He argues that, despite the dominant tendency within recent French political philosophy to assume that the individualist conception of liberty is the only truly modern form of liberty, communitarian principles are present within the Enlightenment tradition. He demonstrates the inadequacies of the individualist approach in an analysis of Rawls, and also rejects the type of communitarianism developed by MacIntyre, which depends upon a substantive concept of the community. With reference to theories of communication, he describes how we can elaborate a cornmunitarian approach to individual freedom.     

“Native Courts” and the Limits of the Law in Colonial Sudan: Ambiguity as Strategy

This article offers a way of thinking about colonial‐era legal reform that departs from traditional narratives by highlighting the importance of legal ambiguity in state building projects. Following the establishment of “Native Administration” in the Sudan in the early 1920s, the British colonial government conferred expansive judicial and administrative powers on tribal sheikhs and nazirs (chiefs), while at the same time discouraging many attempts to formalize or standardize those powers, preferring instead that they remain informal and undefined. This policy, which I term “strategic ambiguity,” emerged out of a belief that tribal leaders would be more effective if they possessed maximum discretion and judicial flexibility, even though the result was a colonial government woefully ill‐informed about much of its own judicial system. These findings point to a way of thinking about colonial‐era legal reform in which governmental ignorance was actually productive of sovereignty, and not an obstacle to it.     

Twenty-Five Years of <Emphasis Type="Italic">Social Science in Law</Emphasis>

In this essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed—sometimes radically—are the substantive legal questions on which social science has been brought to bear.     

When “Best Practices” Win,Employees Lose: Symbolic Compliance and Judicial Inference in Federal Equal Employment Opportunity Cases

This article provides a new account of employers' advantages over employees in federal employment discrimination cases. We analyze the effects of judicial deference, in which judges use institutionalized employment structures to infer nondiscrimination without scrutinizing those structures in any meaningful way. Using logistic regression to analyze a representative sample of judicial opinions in federal EEO cases during the first thirty‐five years after the passage of the 1964 Civil Rights Act, we find that when judges uncritically use the presence of organizational structures to reason about whether discrimination occurred, employers are much more likely to prevail. This pattern is especially pronounced in opinions written by liberal judges. In light of these findings, we offer recommendations for judges, lawyers, and policy makers—including legal academics—who seek to improve the accuracy and efficacy of employment discrimination adjudications.     

Activist Lawyers in Post‐Tiananmen China

What do the activities of twenty‐first‐century Chinese lawyers tell us about the origins and prospects of legal activism under authoritarianism? This essay fits China's Human Rights Lawyers (2014) into an emerging literature on authoritarian legality. The book offers an insider view of a circle of lawyers interested in using China's newly accessible courts as a platform for social activism. It highlights the difficulty of rights lawyers’ day‐to‐day work against the backdrop of the Chinese state's long‐term experiment in how to harness the power of law without ceding political control.     

Jurist in Context: William Twining in Conversation with David Sugarman

This discussion derives from extended conversations between William Twining and David Sugarman in which William talks about his latest book, Jurist in Context: A Memoir (JIC). JIC recounts the development of William's thoughts and writings, addressing topics central to his life and research. The dialogue conveys and extends the arguments on a selection of the topics addressed in the book, engaging with issues of particular interest to readers of this journal. Here, William adds a more personal commentary to his formal publications. The conversation facilitates reflection on issues such as law teaching and legal scholarship; the meaning, use, and limitations of ‘law in context’; and the role and character of jurisprudence. It also offers a fascinating window on the development of, and the struggles surrounding, legal education and academic legal thought over the second half of the twentieth century and the early part of the twenty-first.     

Requirement‐Sensitive Legal Moralism: A Critical Assessment

Requirement‐sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere (e.g., a private sphere) in which the law is not to interfere; only contingent, non‐moral factors can defeat this. Using William A. Edmundson's Three Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed.     

Legal Compliance in Street‐Level Bureaucracy: A Study of UK Housing Officers

Street‐level bureaucratic theory is now at a fairly mature stage. The focus on street‐level bureaucrats as ultimate policymakers is now as familiar as it is important. Likewise, the parallel sociolegal study of the implementation of public law in public organizations has demonstrated the inevitable gap between law‐in‐the‐books and law‐in‐action. Yet, the success of these advances comes at the potential cost of us losing sight of the importance of law itself. This article analyzes some empirical data on the decision making about one legal concept—vulnerability in UK homelessness law. Our analysis offers two main contributions. First, we argue that, when it comes to the implementation of law, the legal abilities and propensities of the bureaucrats must be taken into account. Bureaucrats' abilities to understand legal materials make a difference to the likelihood of legal compliance. Second, we must also pay attention to the character of the legal provisions. Where a provision is simple, it is more likely to facilitate legal knowledge and demands nothing of bureaucrats in terms of legal competence. Where the provision is also inoffensive and liveable, it is less likely to act as an impediment to legal conscientiousness.     

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework.