Ten Legal Theory Books from 2007

Here are ten of my personal favorites from the 2007 Legal Theory Bookworm:

Democratic Authority: A Philosophical Framework by David M. Estlund

Democracy is not naturally plausible. Why turn such important matters over to masses of people who have no expertise? Theories of democracy often try to answer this objection by appealing to the intrinsic value of democratic procedure itself, disregarding whether or not it tends toward good decisions. In Democratic Authority, David Estlund shows why this procedural justification of democratic procedure doesn't work, and he offers a groundbreaking alternative based on the idea that democratic authority and legitimacy must depend partly on democracy's tendency to make good decisions.

Just as with verdicts in jury trials, Estlund argues, the authority and legitimacy of a political decision does not depend on the particular decision being good or correct. But the "epistemic value" of the procedure--the degree to which it can generally be accepted as tending toward a good decision--is nevertheless crucial. Yet if this were all that mattered, one might wonder why those who know best shouldn't simply rule. Estlund's theory--which he calls "epistemic proceduralism"--avoids epistocracy, or the rule of those who know. He argues that while some few people probably do know best, this can be used in political justification only if their expertise is acceptable from all reasonable points of view. If we seek the best epistemic arrangement in this respect, it will be recognizably democratic--with laws and policies actually authorized by the people subject to them.

Independence of Mind by Timothy Macklem

The fundamental freedoms of speech, conscience, privacy, and religion are now an essential part of the fabric of contemporary society, set down in our most basic laws and regularly invoked in our political and cultural debates. These freedoms play a vital role in securing the spaces and opportunities within which people are able to pursue their own lives in their own ways.

Independence of Mind takes this accepted thought a step further, by exploring the ways in which the fundamental freedoms help us to achieve something even more profound, by enabling us to arrive at beliefs, convictions and voices of our own, so that we truly come to think, believe and speak for ourselves in the rich and various ways that the freedoms then protect. Privacy grants us the distance and refuge from others necessary to develop views of our own; freedom of speech calls on us to imagine ways of expressing ourselves that are both true to the views we have developed and innovative in their own right; freedom of conscience enables each of us to create a distinctive rational personality in which to embed the convictions that we wish to treat as non-negotiable; freedom of religion allows groups of us to endorse certain beliefs as articles of faith, free from the full demands of rational scrutiny.

Much has been written about the political and legal implications of the fundamental freedoms and their entrenchment in bills of rights. This is the first book to undertake a comprehensive philosophical examination of their moral bases. It offers a penetrating analysis of what makes these particular freedoms matter to us in the ways that they do, and of the true significance of their entrenchment in law.

Law and Justice in the Courts of Classical Athens by Adriaan Lanni

Adriaan Lanni draws on contemporary legal thinking to present a new model of the legal system of classical Athens. She analyzes the Athenians' preference in most cases for ad hoc, discretionary decision-making, as opposed to what moderns would call the rule of law. Lanni argues that the Athenians consciously employed different approaches to legal decision-making in different types of courts. The varied approaches to legal process stems from a deep tension in Athenian practice and thinking, between the demand for flexibility of legal interpretation consistent with the exercise of democratic power by ordinary Athenian jurors; and the demand for consistency and predictability in legal interpretation expected by litigants and necessary to permit citizens to conform their conduct to the law. Lanni presents classical Athens as a case study of a successful legal system that, by modern standards, had an extraordinarily individualized and discretionary approach to justice.

Lectures on the History of Political Philosophy by John Rawls

This last book by the late John Rawls, derived from written lectures and notes for his long-running course on modern political philosophy, offers readers an account of the liberal political tradition from a scholar viewed by many as the greatest contemporary exponent of the philosophy behind that tradition. Rawls's goal in the lectures was, he wrote, "to identify the more central features of liberalism as expressing a political conception of justice when liberalism is viewed from within the tradition of democratic constitutionalism." He does this by looking at several strands that make up the liberal and democratic constitutional traditions, and at the historical figures who best represent these strands--among them the contractarians Hobbes, Locke, and Rousseau; the utilitarians Hume, Sidgwick, and J. S. Mill; and Marx regarded as a critic of liberalism. Rawls's lectures on Bishop Joseph Butler also are included in an appendix. Constantly revised and refined over three decades, Rawls's lectures on these figures reflect his developing and changing views on the history of liberalism and democracy--as well as how he saw his own work in relation to those traditions. With its clear and careful analyses of the doctrine of the social contract, utilitarianism, and socialism--and of their most influential proponents--this volume has a critical place in the traditions it expounds. Marked by Rawls's characteristic patience and curiosity, and scrupulously edited by his student and teaching assistant, Samuel Freeman, these lectures are a fitting final addition to his oeuvre, and to the history of political philosophy as well.

The Legal Analyst: A Toolkit for Thinking about the Law by Ward Farnsworth

There are two kinds of knowledge law school teaches: legal rules on the one hand, and tools for thinking about legal problems on the other. Although the tools are far more interesting and useful than the rules, they tend to be neglected in favor of other aspects of the curriculum. In The Legal Analyst, Ward Farnsworth brings together in one place all of the most powerful of those tools for thinking about law.

From classic ideas in game theory such as the “Prisoner’s Dilemma” and the “Stag Hunt” to psychological principles such as hindsight bias and framing effects, from ideas in jurisprudence such as the slippery slope to more than two dozen other such principles, Farnsworth’s guide leads readers through the fascinating world of legal thought. Each chapter introduces a single tool and shows how it can be used to solve different types of problems. The explanations are written in clear, lively language and illustrated with a wide range of examples.

The Legal Analyst is an indispensable user’s manual for law students, experienced practitioners seeking a one-stop guide to legal principles, or anyone else with an interest in the law.

Mechanisms of Democracy: Institutional Design Writ Small by Adrian Vermeule

What institutional arrangements should a well-functioning constitutional democracy have?

Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. In this book, Adrian Vermeule moves beyond these debates, changing the focus to institutional design writ small.

In established constitutional polities, Vermeule argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly.

Drawing upon a range of social science tools from economics, political science, and other disciplines, Vermeule carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.

Moral Literacy by Barbara Herman

A distinguished moral philosopher and a leading interpreter of Kant's ethics, Barbara Herman draws on Kant to address timeless issues in ethical theory as well as ones arising from current moral problems, such as obligations to distant need, the history of slavery as it bears on affirmative action, and the moral costs of reparative justice.

Challenging various Kantian orthodoxies, Herman offers a view of moral competency as a complex achievement, governed by rational norms and dependent on supportive social conditions. She argues that the objectivity of duties and obligations does not rule out the possibility of or need for moral invention. Her goal is not to revise Kant but to explore the issues and ask the questions that he did not consider.

Some of the essays involve explicit interpretation of Kant, and others are prompted by ground-level questions. For example, how should we think about moral character given what we know about the fault lines in normal development? If ordinary moral life is saturated by the content of local institutions, how should our accounts of moral obligation and judgment accommodate this?

Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy by Brian Leiter

Brian Leiter is widely recognized as the leading philosophical interpreter of the jurisprudence of American Legal Realism, as well as the most influential proponent of the relevance of the naturalistic turn in philosophy to the problems of legal philosophy. This volume collects newly revised versions of ten of his best-known essays, which set out his re-interpretation of the Legal Realists as prescient philosophical naturalists; critically engage with jurisprudential responses to Legal Realism, from legal positivism to Critical Legal Studies; connect the Realist program to the methodology debate in contemporary jurisprudence; and explore the general implications of a naturalistic world view for problems about the objectivity of law and morality. Leiter has supplied a lengthy new introductory essay, as well as postscripts to several of the essays, in which he responds to challenges to his interpretive and philosophical claims by academic lawyers and philosophers. This volume will be essential reading for anyone interested in jurisprudence, as well as for philosophers concerned with the consequences of naturalism in moral and legal philosophy.

Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History by Keith E. Whittington

Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution.

Three Anarchical Fallacies: An Essay on Political Authority by William A. Edmundson

How is a legitimate state possible? Obedience, coercion, and intrusion are three ideas that seem inseparable from all government and seem to render state authority presumptively illegitimate. This book exposes three fallacies inspired by these ideas and in doing so challenges assumptions shared by liberals, libertarians, cultural conservatives, moderates, and Marxists. In three clear and tightly-argued essays William Edmundson dispels these fallacies and shows that living in a just state remains a worthy ideal. This is an important book for all philosophers, political scientists, and legal theorists as well as readers interested in the views of Rawls, Dworkin, and Nozick, many of whose central ideas are subjected to rigorous critique.