Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends On Compromise and Rotten Compromises by Avishai Margalit. Here is a description:

When is political compromise acceptable--and when is it fundamentally rotten, something we should never accept, come what may? What if a rotten compromise is politically necessary? Compromise is a great political virtue, especially for the sake of peace. But, as Avishai Margalit argues, there are moral limits to acceptable compromise even for peace. But just what are those limits? At what point does peace secured with compromise become unjust? Focusing attention on vitally important questions that have received surprisingly little attention, Margalit argues that we should be concerned not only with what makes a just war, but also with what kind of compromise allows for a just peace.

Examining a wide range of examples, including the Munich Agreement, the Yalta Conference, and Arab-Israeli peace negotiations, Margalit provides a searching examination of the nature of political compromise in its various forms. Combining philosophy, politics, and history, and written in a vivid and accessible style, On Compromise and Rotten Compromises is full of surprising new insights about war, peace, justice, and sectarianism.

And from the blurgs:

When is political compromise acceptable--and when is it fundamentally rotten, something we should never accept, come what may? What if a rotten compromise is politically necessary? Compromise is a great political virtue, especially for the sake of peace. But, as Avishai Margalit argues, there are moral limits to acceptable compromise even for peace. But just what are those limits? At what point does peace secured with compromise become unjust? Focusing attention on vitally important questions that have received surprisingly little attention, Margalit argues that we should be concerned not only with what makes a just war, but also with what kind of compromise allows for a just peace. Examining a wide range of examples, including the Munich Agreement, the Yalta Conference, and Arab-Israeli peace negotiations, Margalit provides a searching examination of the nature of political compromise in its various forms. Combining philosophy, politics, and history, and written in a vivid and accessible style, On Compromise and Rotten Compromises is full of surprising new insights about war, peace, justice, and sectarianism. Avishai Margalit's most recent book (with Ian Buruma) is Occidentalism: The West in the Eyes of Its Enemies (Penguin). His other books include The Ethics of Memory and The Decent Society. A professor emeritus of philosophy at the Hebrew University of Jerusalem, Margalit is the George F. Kennan Professor at the Institute for Advanced Study in Princeton. Endorsements: "Avishai Margalit has turned a fierce spotlight on a neglected but important area of ethics, when compromises are morally acceptable. He introduces new and compelling distinctions and illuminates a number of major issues in contemporary and recent historical events."--Kenneth J. Arrow, winner of the Nobel Prize in economics

"This book will stimulate wide discussion because compromise--when to make them, when to resist them--is a vital subject in political life, and because Avishai Margalit is universally respected for his analytical skills and moral discernment. The examples give the book historical depth and importance, and the writing is sprightly, precise, and accessible, with memorable turns of phrase. The book reeled me in and held my attention for the duration."--Michael Ignatieff, author of The Lesser Evil: Political Ethics in an Age of Terror

"This book is tremendously important for its introduction and treatment of a fundamental but neglected topic in political philosophy. It also stands out for its writing, with examples and anecdotes introducing rigorous and detailed argumentation without in any way interrupting the narrative flow."--Arthur Ripstein, University of Toronto

Legal Theory Bookworm

The Legal Theory Bookworm recommends Beyond the Formalist-Realist Divide: The Role of Politics in Judging by Brian Z. Tamanaha. Here is a description:

According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

And from the reviews:

"Beyond the Formalist-Realist Divide will forever change our understanding of American legal realism and its mythical opponent, legal formalism. Generations of judges, lawyers, and scholars have come to see a false picture that pits radically skeptical realists against naïve or deceptive formalists. Tamanaha's magnificent book will open your eyes and change the way you think about the law. Every lawyer and judge should read this book. Every legal scholar must!"--Lawrence Solum, University of Illinois, Urbana-Champaign

"Tamanaha makes a very important argument with real verve, and I have no doubt that it will generate very wide interest, controversy, and, I am confident, changes in the way American legal history is presented. He is out to destroy what has become the standard narrative of our legal past. The ball is now in the court of those who wish to preserve that narrative."--Sanford V. Levinson, University of Texas School of Law

"This is an excellent book and a very significant contribution to the field. Tamanaha very effectively debunks the traditional, simplistic, yet widely accepted vision of a break between traditional formalism and modern realism. His book may well become a classic historical reference."--Frank B. Cross, author of Decision Making in the U.S. Courts of Appeals

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Perils of Global Legalism by Eric A. Posner. Here is a description:

The first months of the Obama administration have led to expectations, both in the United States and abroad, that in the coming years America will increasingly promote the international rule of law—a position that many believe is both ethically necessary and in the nation’s best interests.

With The Perils of Global Legalism, Eric A. Posner explains that such views demonstrate a dangerously naive tendency toward legalism—an idealistic belief that law can be effective even in the absence of legitimate institutions of governance. After tracing the historical roots of the concept, Posner carefully lays out the many illusions—such as universalism, sovereign equality, and the possibility of disinterested judgment by politically unaccountable officials—on which the legalistic view is founded. Drawing on such examples as NATO’s invasion of Serbia, attempts to ban the use of land mines, and the free-trade provisions of the WTO, Posner demonstrates throughout that the weaknesses of international law confound legalist ambitions—and that whatever their professed commitments, all nations stand ready to dispense with international agreements when it suits their short- or long-term interests.

Provocative and sure to be controversial, The Perils of Global Legalism will serve as a wake-up call for those who view global legalism as a panacea—and a reminder that international relations in a brutal world allow no room for illusions.

And from the reviews:

"This carefully argued book provides a useful corrective to the frequent assumption, held by many American legal academics and European elites, that the world's problems can be substantially reduced simply by creating more international law and institutions. As the book persuasively explains, only through rigorous thinking about the limits of what law and courts can accomplish in a heterogeneous and fragmented global system can we achieve more effective international cooperation. Rich in theoretical and interdisciplinary insights, the book also illustrates its claims with numerous real-world examples, both contemporary and historic, making it accessible to a wide audience."--Curtis Bradley, Duke Law School

"This trenchant and rigorous book provides a much-needed antidote to the sanctimony and sermonizing that permeates international law. It lays bare international law's circularity and demonstrates that much of the edifice is built on illusion. The `establishment' will be forced into contortions to answer its arguments. It's a bracing, refreshingly and altogether scintillating read."-Michael J. Glennon, author of Limits of Law, Prerogatives of Power

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Idea of Human Rights by Charles R. Beitz. Here is a description:

The international doctrine of human rights is one of the most ambitious parts of the settlement of World War II. Since then, the language of human rights has become the common language of social criticism in global political life. This book is a theoretical examination of the central idea of that language, the idea of a human right. In contrast to more conventional philosophical studies, the author takes a practical approach, looking at the history and political practice of human rights for guidance in understanding the central idea. The author presents a model of human rights as matters of international concern whose violation by governments can justify international protective and restorative action ranging from intervention to assistance. He proposes a schema for justifying human rights and applies it to several controversial cases--rights against poverty, rights to democracy, and the human rights of women. Throughout, the book attends to some main reasons why people are skeptical about human rights, including the fear that human rights will be used by strong powers to advance their national interests. The book concludes by observing that contemporary human rights practice is vulnerable to several pathologies and argues the need for international collaboration to avoid them.

Highly recommended.

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution by Barry Friedman. Here is a description:

In recent years, the justices of the Supreme Court have ruled definitively on such issues as abortion, school prayer, and military tribunals in the war on terror. They decided one of American history’s most contested presidential elections. Yet for all their power, the justices never face election and hold their offices for life. This combination of influence and apparent unaccountability has led many to complain that there is something illegitimate—even undemocratic—about judicial authority.

In The Will of the People, Barry Friedman challenges that claim by showing that the Court has always been subject to a higher power: the American public. Judicial positions have been abolished, the justices’ jurisdiction has been stripped, the Court has been packed, and unpopular decisions have been defied. For at least the past sixty years, the justices have made sure that their decisions do not stray too far from public opinion.

Friedman’s pathbreaking account of the relationship between popular opinion and the Supreme Court—from the Declaration of Independence to the end of the Rehnquist court in 2005—details how the American people came to accept their most controversial institution and shaped the meaning of the Constitution.

And from the reviews:

“[A] thought-provoking and authoritative history . . . Friedman’s contribution to this discussion is the breadth and detail of his historical canvas, and it’s a significant one.” —Emily Bazelon, The New York Times Book Review

“Serious and academic in tone, this book tackles a complex subject.” —Becky Kennedy, Library Journal

“Friedman offers a fresh, dynamic rethinking of the role of the Constitution and the Court that puts democratic politics at the center of the story.” —Publishers Weekly

“We think of the Supreme Court’s constitutional decisions as lofty, lonely, unchallengeable. But in truth they are part of a dialogue with public opinion and political leadership—and in the long run the Court does not stray far from the public. That is the convincing conclusion of Barry Friedman’s stunning, fascinating history.” —Anthony Lewis, author of Gideon’s Trumpet

“Deeply informed by history and political science, The Will of the People offers a fresh and insightful look at the most profound problem in American constitutional thought: how and whether the Supreme Court may thwart the will of a democratic majority. With elegance, clarity, and patience, Friedman tells the story of how the Court has gauged public opinion: now giving in to its power, now shaping it, and even occasionally standing up to it. No one who cares about the development of the Supreme Court—or the Constitution—should miss this book.” —Noah Feldman, Bemis Professor of Law, Harvard Law School, and author of Divided by God and After Jihad

“In this beautifully written and extensively researched study, Barry Friedman explodes the common myth that the Supreme Court regularly thwarts the will of national majorities. The next time you hear a politician or pundit blather on about an out-of-control judiciary, tell them to stop pontificating until they have read this remarkable book.” —Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School

“Since its inception, the United States Supreme Court has had to walk the delicate line between a respect for majority will and a protection of minority rights. Barry Friedman gathers wide-ranging evidence, much from surprising sources, to support the proposition that the court rarely strays too far from public opinion in the exercise of the power of judicial review, and we are better for it. All readers will profit mightily from this learned book, whether or not they buy into Friedman’s arresting thesis.” —Richard Epstein, James Parker Hall Distinguished Service Professor of Law at the University of Chicago, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and Visiting Professor at New York University

Legal Theory Bookworm

The Legal Theory Bookworm recommends Force and Freedom: Kant's Legal and Political Philosophy by Arthur Ripstein. Here is a description:

In this masterful work, both an illumination of Kant’s thought and an important contribution to contemporary legal and political theory, Arthur Ripstein gives a comprehensive yet accessible account of Kant’s political philosophy. Ripstein shows that Kant’s thought is organized around two central claims: first, that legal institutions are not simply responses to human limitations or circumstances; indeed the requirements of justice can be articulated without recourse to views about human inclinations and vulnerabilities. Second, Kant argues for a distinctive moral principle, which restricts the legitimate use of force to the creation of a system of equal freedom. Ripstein’s description of the unity and philosophical plausibility of this dimension of Kant’s thought will be a revelation to political and legal scholars.

In addition to providing a clear and coherent statement of the most misunderstood of Kant’s ideas, Ripstein also shows that Kant’s views remain conceptually powerful and morally appealing today. Ripstein defends the idea of equal freedom by examining several substantive areas of law—private rights, constitutional law, police powers, and punishment—and by demonstrating the compelling advantages of the Kantian framework over competing approaches.

And from the reviews:

This is one of the best books on Kant's legal philosophy to appear to date. It is both an outstanding commentary on Kant and an important work of legal-political philosophy with much contemporary relevance. What is perhaps most impressive about this book is how much unity it uncovers in Kant's legal and political thought.
--Martin J. Stone, Benjamin N. Cardozo School of Law

This masterful treatment of Kant's legal and political philosophy gets to the heart of Kant's endeavor and its virtues with wonderful clarity--a terrific achievement. We learn from Ripstein both how Kant's legal and political philosophy is best understood and how this philosophy can be defended and employed in ongoing philosophical debates. I regard this as the very best kind of approach to the history of philosophy.
--A. John Simmons, University of Virginia

Legal Theory Bookworm

The Legal Theory Bookworm recommends Constitutional Rights in Two Worlds: South Africa and the United States by Mark S. Kende. Here is a description:

The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socio-economic rights, allowing gay marriage and promoting equality. These decisions are striking given the country's Apartheid past and the absence of a grand human rights tradition. By contrast, the U.S. Supreme Court has generally ruled more conservatively on similar questions. This book examines the Constitutional Court in detail to determine how it has functioned during South Africa's transition and compares its rulings to those of the U.S. Supreme Court on similar rights issues. The book also analyzes the scholarly debate about the Constitutional Court taking place in South Africa. It furthermore addresses the arguments of those international scholars who have suggested that constitutional courts do not generally bring about social change. In the end, the book highlights a transformative pragmatic method of constitutional interpretation - a method the U.S. Supreme Court could employ.

And from the reviews:

"This book provides a perceptive examination and critique of important areas of the jurisprudence of the South African Constitutional Court. Professor Kende uses the South African decisions as a prism for examining the case law of courts of other democratic nations and especially the United States Supreme Court. It provides important new insights into many areas of concern to scholars, judges, practitioners and students."
--Richard J.Goldstone, Former Justice of the South African Constitutional Court

"A fascinating, original, and genuinely important book, illuminating not only the South Africa and American Constitutions, but constitutional theory and practice in general. Indispensable reading."
--Cass R. Sunstein, Felix Frankfurter Professor of Law, Harvard Law School

"Mark Kende's book is an outstanding and refreshing contribution to the growing literature on comparative constitutionalism. His profound analyses of the fascinating South African constitutional project, and the crosscultural juxtaposition of its constitutional rights jurisprudence and the US constitutional practices reflect the challenges of modern day constitutionalism. Kende's approach of 'transformational constitutionalism with a pragmatic touch' will revive the rusty discourse on US constitutionalism, and his conclusions form a sound basis for a comperehensive and progressive reform agenda."
--Dr. Rainer Nickel, Institut für Öffentliches Recht/Institute for Public Law, Goethe-Universität Frankfurt am Main and Former Schlesinger Scholar and Visiting Professor at Cornell Law School

"Written in clear and persuasive prose, Mark Kende's very compelling narrative raises provocative questions about the role of constitutions and courts to effect social and political change. His thoughtful comparative analysis of the rights provisions in the South African and American constitutional frameworks provides the reader with a novel perspective by which to examine contemporary constitutional issues like religion, social and economic rights, and gay marriage. As Kende points out, although there are marked differences, the United States and South Africa have a shared history of racial segregation and tyranny, which both societies have endeavored to overcome through constitutional mechanisms, including an innovative constitutional jurisprudence. Drawing on his impressive knowledge of both constitutional systems, Kende highlights the possibilities and the limitations that constitutions can generate regarding structural societal change. American constitutional law has spawned an extraordinary volume of scholarly works, and a significant literature on the South African Constitution has emerged since the first constitution was adopted there in 1993. Kende's volume is the first to provide a detailed comparative perspective, highlighting differences and similarities that will be of tremendous value to public law, comparative constitutional law, and international human rights scholars."
--Penelope Andrews, Professor of Law and Director of International Programs, Valparaiso University School of Law

Legal Theory Bookworm

The Legal Theory Bookworm recommends Making Sense of Mass Atrocity by Mark J. Osiel. Here is a description:

“Who done it?” is not the first question that comes to mind when one seeks to make sense of mass atrocity. So brazen are the leader-culprits in their apologetics for the harms, so wrenching the human destruction clearly wrought, meticulously documented by many credible sources. Yet in legal terms, mass atrocity remains disconcertingly elusive. The perversity of its perpetrators is polymorphic, impeding criminal courts from tracing true lines of responsibility in ways intelligible through law’s pre-existing categories, designed with simpler stuff in mind.

Genocide, crimes against humanity, and the worst war crimes are possible only when the state or other organizations mobilize and coordinate the efforts of many people. Responsibility for mass atrocity is therefore always widely shared, often by thousands. Yet criminal law, with its liberal underpinnings, insists on blaming particular individuals for isolated acts. Is such law therefore constitutionally unable to make any sense of the most catastrophic conflagrations of our time? Drawing on the experience of several recent prosecutions (both national and international), this book trenchantly diagnoses law’s limits at such times and offers a spirited defense of its moral and intellectual resources for meeting the vexing challenge of holding anyone criminally accountable for mass atrocity. Just as today’s war criminals develop new methods of eluding law’s historic grasp, so criminal law flexibly devises novel responses to their stratagems. Mark Osiel examines several such recent legal innovations in international jurisprudence and proposes still others.

And from the reviews:

"The law's confrontation with mass evil is the urgent focus of Mark Osiel's engrossing, compelling, and wholly original book. Ranging from Dachau to Darfur, Cambodia and South America to the former Yugoslavia, Osiel weaves together deep understanding of how violence becomes organized, the cloudy relationships between leaders and others, the role of emerging networks of violence, and the law's difficulties in coming to grips with assigning responsibility for mass evil. Academically original, yet written in a lively, accessible voice, this book is essential reading on one of the central moral, political, and legal struggles of our time."
--Richard H. Pildes, Sudler Family Professor of Constitutional Law, Co-Director, NYU Center on Law and Security, NYU School of Law

"This focus of this book is on two central questions: how does mass atrocity happen and how should the criminal law respond. By addressing them not only from a legal perspective, but also drawing from a vast literature outside the law… Mark Osiel engages the reader into a much needed “thinking outside the box” exercise, inviting international criminal lawyers to leave the “professorial echo chamber” and to have a fresh look at the social realities of mass atrocity and the legal theories that try to capture it. The result is a refreshing analysis of these theories as they emerge from the jurisprudence of the ad hoc tribunals and the ICC… Osiel paints a fascinating picture of the political context in which legal choices between these theories are made, exploring the conflicting incentives of international and national prosecutors in post-conflict societies and explaining why national and international courts often treat similarly situated offenders differently. He offers some interesting new possibilities and solutions, and suggests ways to overcome bystander indifference in situations where mass atrocities occur…invaluable reading…."
--Christine Van den Wyngaert, Judge, International Criminal Court

"Mark Osiel continues his unique blend of close legal reasoning, a profound sense of the worst potentials lurking in human nature, and a deep appreciation of the practical... At the root of the work is a deeply moral motive – to find effective means of restraining and punishing the worst kinds of atrocities. What most distinguishes Osiel's contribution is his avoidance of legal or moral idealism. Exploring the scope and limits of the law's power over such behavior, Osiel offers sage, judicious, balanced, and realistic proposals for finding our way toward a more law-governed international community."
--Martin L. Cook, Admiral James Bon Stockdale Chair of Professional Military Ethics, U.S. Naval War College

"In this provocative, seminal work, Professor Osiel masterfully explores innovative legal vehicles to justly hold accountable individual and group perpetrators of mass atrocity... He brings to bear ground-breaking, and in some cases, somewhat controversial legal theories and tactics to attach proper criminal liability to those culpable in mass killings. A bold, highly instructive, and invaluable contribution to transnational humanitarian law."
--Colonel Joseph P. "Dutch" Bialke, U.S. Air Force Judge Advocate

Legal Theory Bookworm

The Legal Theory Bookworm recommends Judicial Review in an Age of Moral Pluralism by Ronald C. Den Otter.  Here is a description:

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action, and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and judicial power under conditions of moral pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies.

And from the blurbs:

"Judicial Review in an Age of Moral Pluralism is an important work of constitutional theory that deserves a wide readership in philosophy, political science, and law. It fills an important void in conceptual space by melding work in political philosophy on public reason with theories of constitutional interpretation and judicial review. Ron Den Otter makes that case that the practice of judicial review must be informed by an ideal of public reason--his arguments have important implications for fundamental debates about judicial review, fundamental rights, and the relationship between legal reason, politics, and religion. This is one of the most creative and interesting books on constitutional theory to appear in the past several years." --Lawrence B. Solum, John E. Cribbet Professor of Law and Professor of Philosophy University of Illinois College of Law, Editor of Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends Philosophy, Politics, Democracy: Selected Essays by Joshua Cohen. Here is a description:

Over the past twenty years, Joshua Cohen has explored the most controversial issues facing the American public: campaign finance and political equality, privacy rights and robust public debate, hate speech and pornography, and the capacity of democracies to address important practical problems. In this highly anticipated volume, Cohen draws on his work in these diverse topics to develop an argument about what he calls, following John Rawls, “democracy’s public reason.” He rejects the conventional idea that democratic politics is simply a contest for power, and that philosophical argument is disconnected from life. Political philosophy, he insists, is part of politics, and its job is to contribute to the public reasoning about what we ought to do.

At the heart of Cohen’s normative vision for our political life is an ideal of democracy in which citizens and their representatives deliberate about the requirements of justice and the common good. It is an idealistic picture, but also firmly grounded in the debates and struggles in which Cohen has been engaged over nearly three decades. Philosophy, Politics, Democracy explores these debates and considers their implications for the practice of democratic politics.

And from the reviews:

For good reason, Joshua Cohen is widely regarded as among the leading political philosophers of his generation. Nearly all of these essays are highly original approaches to the topics discussed. Many of them are widely recognized by philosophers and political theorists as major and sometimes defining papers in their fields. Taken together, the collection develops an extremely impressive and intricate account of an ideal of democracy and democratic justice.
--Samuel Freeman, University of Pennsylvania

Joshua Cohen ranks among the best and most influential political philosophers at work in the United States today. This uncommonly valuable volume will be a required purchase for anybody whose own work is at the boundary of philosophy and politics.
--Charles Beitz, Princeton University

Joshua Cohen is the leading political philosopher of deep democracy of his generation. This book is profound, subtle, and relevant. We need his wise and powerful voice in this age of Obama.
--Cornel West, Princeton University

Joshua Cohen's Philosophy, Politics, Democracy is a major contribution to all three. With arguments that have long been at the cutting edge of political philosophy, Cohen develops a distinctive conception of democracy as based upon reason-giving among equals, and he does so in a way that never ignores political reality. Daily political discourse, Cohen argues, contains conceptions of the social world that border on philosophical thought. Good philosophical argument develops those conceptions more rigorously and generally, and then returns to the world of politics to show how the conception might be realized there. All too often, Cohen observes, we respond to political ideals with "a knowing irony of the intellect and a lassitude of the heart." Realistic without cynicism, idealistic without na&iumlveté, Cohen's book responds to the real world with rigorous intellectual aspiration and undaunted practical hope.
--Martha C. Nussbaum, The University of Chicago