LAW, NORMS & INFORMAL ORDER eJOURNAL
"The Regulatabilization of Cannabis"
Fordham Urban Law Journal, Vol. 49, No. 3, pp. 519-551 (2022)
Law & Economics Center at George Mason University Scalia Law School Research Paper Series No. 22-017
George Mason Law & Economics Research Paper No. 22-10
DONALD J. KOCHAN, Antonin Scalia Law School at George Mason University
With the change in legal status, marijuana is not really being legalized or even just decriminalized. It is being made regulatable or, to coin a phrase, regulatabilized. Markets in illegal goods — along with the goods’ creation, cultivation, distribution, taxation, sale, etc. — are controlled by criminal law but not regulated per se. Indeed, they are not regulatable because to do so would acknowledge the legitimacy of the activity. Remove illicitness, and suddenly regulatability brings with it layers upon layers of compliance obligations. From an economics perspective, the regulatabilization framing is key because it puts front and center that we are not looking at the functional dynamics between an illicit market and one that simply removes illicitness.
Urban planners and other policymakers cannot pretend or believe that simply making an industry like cannabis legal will automatically make all cannabis activity law-abiding in nature, especially if the costs of operating within the legal market are higher than the illicit alternative. This is all the more reason that an imprecise frame risks obscuring the real costs and market limitations of an effective legalization or decriminalization strategy. Understanding these facts and drawing attention to them with a regulatabilization frame will allow the discussion to more realistically evaluate whether the legal move of opening the door to legal markets in marijuana can accomplish its goals. This Article introduces a greater level of realistic expectations of the regulatory landscape after changing the legal status of marijuana and industries related to it, as well as contributing a level of nuance and sophisticated understanding of what it means to change that status.
"Dissent and the Rule of Law"
36 BYU J. Pub. L. 81 (2022)
Georgia State University College of Law, Legal Studies Research Paper Forthcoming
RUSSELL D. COVEY, Whittier Law School, Georgia State University College of Law
Both the right to dissent and the "rule of law" are celebrated and frequently invoked values. Yet widespread popular dissent, such as that seen in the recent Black Lives Matter protests sparked by the police killing of George Floyd and others and a strong backlash against protestors by some political leaders, has deeply challenged the compatibility of those values. This tension raises deep theoretical questions about the essential concept of the rule of law, questions that have not yet been addressed by legal theorists. Consensus is greatest with respect to some of the formal characteristics of the rule of law, and formal definitions of the rule of law focus on formal properties of governance by law, primarily properties associated with the legality principle. Yet many reject the formal definition as overly neutered, contending instead that if it is to mean anything, the concept of the rule of law must not merely restate formal principles of legality, but instead must also include some substantive content, such as a minimum respect for private property or basic human rights.
While both sides of this debate make important points, I contend in this Essay that there is a critical middle ground between the two positions. While the concept of the rule of law may not necessarily incorporate the entire spectrum of civil and political rights, the very logic of the rule of law demands respect for and adherence to a core set of substantive values beyond the merely formalistic properties of legality identified by legal philosophers like Joseph Raz. At the same time, the concept of the rule of law is not, as the formalists correctly argue, infinitely pliable. It cannot be made to stand for all things thought desirable by critics and interlocutors in political debate. But the parameters of the rule of law concept need not be arbitrarily drawn. Rather, they are inherent in the concept itself.
What we discover when we examine what lies at the intersection of the formalist and substantivist approaches is a core set of overlapping principles that are substantivist in nature, but necessary to the formalist rule of law project. This key substantive component is toleration of and respect for the practice of dissent.
"Freeman Approach: The Sense of Law"
LITON CHANDRA BISWAS, University of Turin, Independent University Bangladesh
Having the sense of law is the prerequisite to the conceptualisation of law. Consequently, a concept of law that is not touched by the sense of law fails to meet the minimum standard required to be accepted as a concept of law. Unfortunately, the concepts of law dominating the legal landscape inevitably fail to meet the minimum standard and, hence, the concepts can be of anything else but of law. How can one propose a concept of law when he or she does not have the sense of it!
The objective of the article is to present the sense of law. In doing so, the article will follow the ‘Freeman’ approach. While the Lawman approach based on the assumption that all people are evil or some are evil and other are good, Freeman approach neither claims that all people are good nor does it classify people as good and evil. Instead, the approach is based on the fact that the same human being has the likelihood to play the both roles ie good or evil, rational or irrational, neutral or biased, altruistic or narcissistic, and so on. Human insight is split over two dimensions – inward and outward and this significantly differentiate human from other animals. These two dimensions led every human to play two roles in his or her life: a. Evaluative - as an observer, evaluator or judge; and b. Executive - as an actor or participant. As an evaluator, he or she is just a part of the unified whole; he or she does not have separate existence apart from others. In this state, he or she plays a role that is impartial, outward and devoid of any individualistic interest. In this state, one is guided by a shared and general sense that generates a shared and general commitment among the humans. This general and shared sense is the sense of law.
This sense is, more connected to the activities of human in general and not, necessarily connected to other micro identities shaped by factors linked to personality, culture, religion, politics, nationality and so on. As an actor and participant in his or her personal life he or she is driven by inward interests loop that makes him or her a parted individual. In this state, he or she plays a partial and individualistic executive role that may limit or diminish his or her general evaluative capacity, and, eventually may come up with biased and individualistic decisions. Nevertheless, when person is guided by the unified, shared and the general sense of law he or she plays a neutral and general role that generate a shared and general commitment. This is why, we see people who, in their personal life, physically torture their family members but, honestly, holds that no one should be physically tortured in any circumstance!! We see many people commit it, but all people, when act as observer & evaluate generally, holds that theft is not good. We see people, who personally holds the belief that X religion is blameworthy, hold that there should not be any discrimination based on one’s religious identity. Similarly, it does not matter where one lives, which culture he or she is brought up with, which religion he or she follows, he or she holds that there should not be any discrimination against the woman, despite his or her culture or religions provides provisions discriminating against the woman. This explains why an honest devotee of Islam, Christianity or Hinduism holds that his or her holy scripture does not promote such discrimination although he or she is aware of provisions that convincingly discriminates and he or she does not have any explanation of such discriminatory provisions. This substantiate that the sense of law is so profound a sense that transcends the society, culture, religion, politics, and so on. Therefore, the provisions of law may vary across the jurisdictions, but the sense of law, itself, cannot; the sense is general. Everyone has and must have this sense inbuilt, and, hence, the sense is neither reduceable from the so-called positivist sources of law nor communicable through publications in the gazettes.
The sense of law inevitably comes with its own sense of morality that is precisely distinguishable from the contextual morality shaped by religion, culture, personality, politics, etc. Nor do these contextual morals essentially connected to legal obligation; only the legal morality is inevitably connected to the legal obligation. The morality of law creates an outward obligation of general nature, while all other morals generate an inward obligation of personal nature. Since the hallmark of law is to create outward obligation, other morals are simply irrelevant as an essential constituent element of law. While all these moralities are prone to be questionable because of their internality, subjectivity, and biasness, morality of law is blessed with externality, generality, and neutrality. Eventually, morality of law conveys significantly higher value because of its nature and when we follow the Freeman approach, we get the highest value possible. With its highest value, it gives the highest justification for legal coercion and this shows the absurdity of the positivists’ claim in relation to the legality of the legal obligations. However, the sense of law does not support the absurd claims of the naturalists’ block either. Some may claim that the growing prohibition of cruel treatment against the animal is a contribution of natural law. We strongly disagree; this is the consequence of the growing human commitment sparked by the sense of law. In future, there may be a general and shared commitment amongst the humans that the robots to be given proper respect. Thus, the concept of law is a stable concept that can be evolved and hence, the human commitments can, whereas the naturalist concept of law is constant and ‘immutable’. The nature of these commitments is not natural rather more connected to the human nature developed in consequence of the exercise of their Freedom. Since, the nature has not been developed as consequence of the deterministic cycle of nature, this concept of law cannot be called as new naturalism or other versions of natural law.
"The Decline of Natural Law and the Rise of Exclusive Positivism"
75 SMU Law Review Forum 174 (2022)
BILL WATSON, Cornell University
Stuart Banner’s "The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped" examines a major change in American legal thought that occurred between the nineteenth and twentieth centuries. Prior to this change, lawyers regularly relied on natural law; afterwards, natural law dropped out of the lawyer’s toolkit. In this review of Banner’s book, I argue that his account of the decline of natural law has important implications for both the substance and methodology of general jurisprudence. On the one hand, his account provides a plausible history of how American lawyers’ concept of law gradually came to cohere with exclusive positivism. On the other hand, his account suggests that our concept of law is more parochial than it is sometimes assumed to be, thus highlighting the limits of conceptual analysis for general jurisprudence.
"Causation and the Silly Norm Effect"
S. Magen & K. Prochownik (Eds.), Advances in Experimental Philosophy of Law (Forthcoming)
LEVIN GÜVER, University of Zurich, Faculty of Law
MARKUS KNEER, Department of Philosophy, University of Zurich
In many spheres, the law takes the legal concept of causation to correspond to the folk concept (the correspondence assumption). Courts, including the US Supreme Court, tend to insist on the "common understanding" and that which is "natural to say" (Burrage v. United States) when it comes to expressions relating to causation, and frequently refuse to clarify the expression to juries. As recent work in psychology and experimental philosophy has uncovered, lay attributions of causation are susceptible to a great number of unexpected factors, some of which seem rather peripheral to causation. One of those is the norm effect (Knobe & Fraser, 2008): Agents who, in acting as they do, break a salient norm, are more likely to be considered as having caused a certain consequence than when they do not violate a norm. According to some (e.g., Alicke, 1992) this constitutes a bias. According to others (e.g., Sytsma, 2020), the folk concept of causation is sensitive to normative factors, and there’s nothing wrong with that. In this paper, we explore the question whether the norm effect should be considered a bias from the legal perspective on the one hand, and from the psychological perspective on the other. To do this, we test whether norms which are nonpertinent to the consequences or outright silly also impact causation judgements. The data from two preregistered experiments (total N=593) clearly show they do. This, we argue, makes the bias interpretation plausible from the psychological perspective, and both plausible and problematic from the legal perspective. It also shows that the law should abstain from unreflectively assuming conceptual correspondence between legal and ordinary language concepts.