Table of Contents

Tolerance of Incoherence in Law, Graded Speech Acts and Illocutionary Pluralism

Oren Perez, Bar-Ilan University - Faculty of Law

Is Statism an Amoral Philosophy?

Jakub Bożydar Wiśniewski, University of Wroclaw - Faculty of Law, Administration and Economics

Law and Norms and Will and Grace

Christine A. Corcos, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

On Blame and Punishment: Respect and Responsibility for Forming a Self

Alec D. Walen, Rutgers School of Law, Rutgers, The State University of New Jersey - Department of Philosophy

Thinking in Three Dimensions: Theorizing Rights as a Normative Concept

Jean Thomas, Queen's University - Faculty of Law

Toward A Critical Theory of Administrative Law

Bijal Shah, Arizona State University (ASU) - Sandra Day O'Connor College of Law


LAW, NORMS & INFORMAL ORDER eJOURNAL

"Tolerance of Incoherence in Law, Graded Speech Acts and Illocutionary Pluralism" Free Download
Legal Theory (Forthcoming)
Bar Ilan University Faculty of Law Research Paper Forthcoming

OREN PEREZ, Bar-Ilan University - Faculty of Law
Email:

One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.

"Is Statism an Amoral Philosophy?" Free Download
Studia Humana 9, 2 (2020), 121-26

JAKUB BOŻYDAR WIŚNIEWSKI, University of Wroclaw - Faculty of Law, Administration and Economics
Email:

Thick moral terms – such as theft, fraud, and counterfeiting – are terms whose very use implies a definitionally necessary moral evaluation of their content. In this paper, I shall argue that the philosophy of statism – that is, a philosophy grounded in the belief in the normative justifiability and desirability of monopolistic apparatuses of initiatory violence – is necessarily amoral insofar as it cannot apply thick moral terms in a logically consistent manner. By the same token, I shall argue that libertarianism – i.e., the view that only consensual social relations are morally acceptable – is the only general sociopolitical doctrine capable of accomplishing this task, thus, in contrast to statism, making its prescriptions susceptible to genuine moral evaluation.

"Law and Norms and Will and Grace" Free Download
50 Cumberland L. Rev. 85 (2020)

CHRISTINE A. CORCOS, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center
Email:

Like many other popular series featuring lawyers and law-related characters that are not primarily legal shows, Will & Grace was and is primarily a “relationship? show. The show features the friendships and closeness among the four main characters, best friends Will Truman and Grace Adler, who originally met in college, and Will’s friend Jack McFarland and Grace’s friend Karen Walker, who are brought together through their relationships with Will and Grace and also eventually become friends. Jack and Karen’s friendship is an exaggerated analogue of Will and Grace’s relationship.

While it is not a legal show, Will & Grace does often feature legal themes, partly because one of its main characters is an attorney and partly because the law is such an important part of daily American life. If we have a problem or a dispute, we often consider whether the appropriate solution is a legal one, or whether we will be satisfied with a less formal and perhaps less binding outcome. More and more, we tend to view relationships and interactions through the legal system, using the law’s language and the law’s behavior. However, the characters in Will & Grace do not always decide on legal solutions to their problems. They may fashion other solutions that they think suit their needs, or they may never consider the law at all.

"On Blame and Punishment: Respect and Responsibility for Forming a Self" Free Download

ALEC D. WALEN, Rutgers School of Law, Rutgers, The State University of New Jersey - Department of Philosophy
Email:

Accounts of punitive blame — blame that is the proper basis for punishment — tend to fall into two camps: those that focus on choices (understood broadly to include options that could have been chosen even if not considered) and those that focus on quality of will or character. Doug Husak argues in favor of a reason-responsive view of choice, according to which the paradigm of blameworthy choice is taking oneself to have sufficient reason not to do something but being too weak willed not to do it. This view implies that negligent behavior, in which an agent should be but is not aware of reasons not to do what she does, is not blameworthy. I argue here that this account of blame is internally inconsistent. I offer in its place an Aristotelian account of becoming responsible for the kind of person one is as a precondition for blame. This is a different kind of choice view according to which an agent who acts wrongly is not blamed for the kind of person she is; she is blamed for her wrongful choices, but only insofar as she had a fair opportunity to become the kind of person she is rather than the kind who would not make them.

"Thinking in Three Dimensions: Theorizing Rights as a Normative Concept" Free Download
Jean Thomas (2020) Thinking in three dimensions: Theorizing Rights as a Normative Concept, Jurisprudence, DOI:10.1080/2043313.2020.1782588

JEAN THOMAS, Queen's University - Faculty of Law
Email:

RIGHTS is a normative concept. This gives rise to three desiderata for conceptualizing RIGHTS: first, given the wide variety of contexts in which rights are invoked, an account of RIGHTS must be suitably general; second, since deploying the concept of rights involves making normative judgments, the account must explain how the concept is action guiding. At the same time, in light of moral disagreement and value pluralism, an account of rights cannot tell us which rights we have. The account must hence identify the types of normative judgments involved in the deployment of RIGHTS and, at the same time, make room for ethical disagreement about the content of specific rights. The article proposes an account of rights that meets these criteria. The model comprises three dimensions: constraint, value, and the right’s individual context. It allows us to understand disagreements about rights as substantive normative ones rather than as conceptual misunderstandings.

"Toward A Critical Theory of Administrative Law" Free Download
Yale Journal on Regulation, Notice & Comment, 2020

BIJAL SHAH, Arizona State University (ASU) - Sandra Day O'Connor College of Law
Email:

This contribution to a symposium on "Racism in Administrative Law" suggests that administrative law is missing a robust tradition of critical legal studies: https://www.yalejreg.com/nc/toward-a-critical-theory-of-administrative-law-by-bijal-shah/ (adapted for the American Bar Association, Administrative & Regulatory Law News (Summer 2020)).

^top

About this eJournal

This area includes content concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: sales@ssrn.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago - Law School, University of Oxford - Centre for Corporate Reputation

JOHN BRAITHWAITE
School of Regulation & Global Governance (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School

PAUL G. MAHONEY
David and Mary Harrison Distinguished Professor, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Human Values, Princeton University, Australian National University (ANU) - Research School of Social Sciences (RSSS)

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School