The main purpose of this paper is to offer a somewhat novel theory of deep democracy and economic justice. Part of the novelty consists in considering radical uncertainty and indeterminacy under postmodern conditions. I claim that even under such conditions a plausible theory of deep democracy and economic justice can make sense. I have tried to consider the postmodernist position with regards to democracy and economic justice by paying careful attention to the arguments of leading postmodernists. Barring a nihilism that rules out arguments entirely, such a procedure seems reasonable. I have offered as an alternative to natural law and transcendental norms an account of Hegel's explorations. As Winfield and others have pointed out, this approach is also anti-foundational. However, by fo...
... reading of Hegel can help in the positive discussion of rights, freedom and justice without ...
To justify the logical transition from factual observation to moral proclamation, Aquinas explicitly appealed to Biblical allegory-arguing that God would not have given people dominion over fish unless He intended them to have control over the necessaries of life.21 With similar reliance on religious doctrine, Aquinas argued that the Christian virtue of charity should limit the extent of one's lawful property holdings,22 and he did not reject the idea that a community body should be charged with overseeing property distribution, apparently to effectuate observance of the virtue of charity.23 Aquinas' theological arguments suggest that he took the Golden Rule as his ethical premise. The injunction to love one's neighbor provided the logical transition between the observation of a need a...
...; as to authorize manifest injustice by positive law; or to take away that security for personal li...
The academic debate surrounding the legality of humanitarian intervention has faltered because of fundamental disagreement about legitimating sources of law. For the states and scholars who give primacy to positive sources of law, humanitarian intervention is a violation of state sovereignty not permitted under international law. In contrast, for natural law theorists who contend that natural law should predominate when necessary to abate atrocities, humanitarian intervention is permitted to curtail human rights abuses. With the positivists and the natural law adherents in such pitched positions, scholarship on the issue of intervention has degenerated into stalemate. One state, however, offers an opportunity for compromise: the Holy See. By proposing historical precedent as a third sou...
..., war crimes, piracy, etc.--apply only to natural persons and not to corporations, leaving corporati... action incorporating it into positive domestic law, is not law of the United States for ...
... Adequate To Distinguish Positivism from Natural Law? The Possibility of Immoral Law 1. Making Sens... it but expressing some form of positive evaluation. Its being law is a desirable, attracti...
To avoid extinctions and other harms to ecological health from escalating climatic change, scientists, resource managers, and activists are considering and even engaging in "assisted migration" -- the intentional movement of an organism to an area in which its species has never existed. This article explores the profound implications of climate change for American natural resource management through the lens of this controversial adaptation strategy. It details arguments regarding the scientific viability and legality of assisted migration under the thicket of laws that govern natural resources in the US. The article explains why contemporary natural resource law's fidelity to historic baselines, protecting preexisting biota, and shielding nature from human activity is increasingly unte...
... minimize the negative (and maximize the positive) consequences of human activities on natural syste...
... is arguable that as human beings they are natural persons as a matter of law. If all this is true, I... than those specifically bestowed by positive law. Prior to actual birth, a non-person's destiny...
§ 3.1 Formalism: The Analytic/Positivist Approach. § 3.2 Holmesian: A Functional/Positivist Approach. § 3.3 Instrumentalism: A Functional/Normative Approach. § 3.4 Natural Law: The Analytic/Normative Approach.
..., predictable treatment of existing positive law with an insistence on logical rule application...
..., one that is negative and the other positive. The former, predominant position, which considers... is to say, just as each individual in the natural state has as much right as the power he possesses,...
The "legal families" theory of corporate law and ownership structures pioneered by Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny provides one of the most influential accounts of why "law matters" in shaping economic organization and outcomes. However, the empirical bases and theoretical logic of the theory contain serious flaws and limitations. Given these flaws in, and limitations of the legal families theory, the intuitively appealing thesis that law matters must be resituated in a more empirically persuasive and historically sensitive account of the relationship between law and politics. The author speculates that any meaningful correlation between legal origins and economic outcomes is the product of politics in the first instance rather than law, a...
... and legal scholars, who are quite naturally inclined to think they study important and consequ... and philosophical distinctions between positive law and natural law, are longestablished modes of ...
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