School of Law

Humankind has always known war as a means to resolve conflict. With the development of ever new technologies, people strove to design more advanced and deadly weapons. These weapons changed the face of war dramatically over time. The continuous arms race led humanity to a point where international relations became chronically unstable. Understanding this predicament, nations started negotiating arms control and disarmament agreements to promote more stable and secure relations.
My research focuses on two major arms control treaties in Europe after World War I. I will explore how the conceptual idea of disarmament in Europe shifted from the punishment of individual states deemed responsible for instigating conflict to the collectively agreed reduction of weapons for the common good. From the Treaty of Versailles (the Treaty) to the modern Conventional Armed Forces in Europe Treaty (the CFE) there were drastic changes in the states’ understanding of arms control. By analyzing these developments, I will try to answer whether changes in the purpose of the CFE Treaty obligations, its function, and its structure made the treaty more effective. My analysis leads to the conclusion that the lessons learned from Versailles made the CFE Treaty a significantly more effective disarmament treaty. First, the foundation for general disarmament laid by the Versailles Treaty became a solid basis for future arms control agreements including the CFE Treaty. Second, the experience of imposed disarmament obligations of the Versailles Treaty provided valuable lessons regarding the viability of disarmament and arms control agreements. Third, the Versailles Peace Treaty laid the foundation for the prohibition of specific types of weapons. Therefore, the experience of Versailles contributed to the development of the conceptual framework and the tools of disarmament diplomacy.

This paper, prepared for the University of Frankfurt Symposium on Defeasibility in Epistemology, Ethics, law and Logic, addresses the claim of H.L.A. Hart and others that law is open-textured.  It is in the nature of law, they say, that it necessarily possesses an open texture going beyond the open texture of the language in which legal rules are written.  But when we examine the question of open texture in light of Hart’s claim that the open texture of law entails the necessary defeasibility of legal rules, we discover that Hart and his followers are mistaken.  Both the alleged open texture of law qua law (as opposed to the open texture occasioned by the open texture of the language used by law) and the defeasibility of legal rules are contingent features of certain legal rules in certain legal regimes, but neither are necessary components of the nature of law or the nature of rules.

Legal Fictions Revisited

Frederick Schauer

There was a time when the topic of legal fictions engaged many of the most important thinkers about law, including Jeremy Bentham, Morris Cohen, John Chipman Gray, Jerome Frank, Lon Fuller, Rudolf von Ihering, Hans Kelsen, Henry Sumner Maine, Alf Ross, and Pierre de Tourtoulon, among many others.  But that time has passed, and these days “legal fiction” has become little more than a loosely used all-purpose term of legal criticism.  This change is unfortunate, however, because real legal fictions still exist and are still important.  Even more significantly, however, understanding legal fictions helps us to understand legal presumptions, and, even more broadly, provides a valuable window into understanding legal truth and legal language.  This paper, prepared for the Project on Truth and Law of the Instituto Tecnológico Autónomo de México (ITAM), explores these issues, recapturing some of the historical thinking about legal fictions, distinguishing true legal fictions from the notion of a fiction in Kelsenian legal philosophy, deflating the notion that legal presumptions are legal fictions, and examining the relationship among true legal fictions, legal truth, and legal language.

On the Nature of the Nature of Law

What is it for something to have a nature?  And what is it for law to have a nature?  Analysis of the concept of law has often been taken to be a search for the essential features of law, but it is not clear that the nature of a phenomenon or artifact is better explained by its essential features than by its common ones.  And it is not clear that necessary truths have more explanatory value than typical truths.  Especially -- but not necessarily – if we recognize the possibility that law is a cluster concept, the value of explaining the widespread but not strictly necessary features of law in explaining law itself becomes more apparent.  The jurisprudential project of differentiating law from other social phenomena is an important one, but the distinction may be a fuzzy one and not susceptible either to sharp demarcation or to specification of essential features of law that will assist in differentiation.  But if we inquire into what typically or usually or almost always characterizes law rather than what necessarily characterizes it, we may make genuine progress in distinguishing law from the social phenomena to which it is adjacent but with which it is not congruent.  This paper, which was originally prepared for the McMaster University Conference in May, 2011, on “The Nature of Law: Contemporary Perspectives,” and which will be published in 2012 in Archiv für Rechts- und Sozialphilosophie, explores these issues.

This article on precedent, prepared as an entry for the forthcoming Routledge Companion to the Philosophy of Law (Andrei Marmor, ed.), examines the main philosophical and jurisprudential issues involved with the concept of precedent and its role in legal reasoning and legal decision-making.  Among the themes covered are the fundamental idea of a past decision being a reason just because of its existence, the distinction between precedential and analogical reasoning, the issues involved in determining which past decisions are precedents for which current ones, the relation between precedent and rules, and the normative and institutional design questions of when a system of precedential constraint is desirable and when it is not.

An important question in free speech theory and in Millian scholarship is the relationship between Chapters One and Two of Mill’s On Liberty.  This essay, prepared on the occasion of and as a comment on Vincent Blasi’s Sullivan Lecture at the Capital University Law School, argues that Chapter Two, dealing with the “Liberty of Thought and Discussion,” is best understood as an exception to the general libertarian themes of Chapter One Iand, indeed, the balance of the book), rather than as an instantiation of them.  Only by undervaluing Mill’s views about the potential harms of speech, by making Mill less of a utilitarian than he claimed to be, and by slighting the social epistemic claims in Chapter Two can that Chapter be made compatible with Mill’s presentation of the Harm Principle in Chapter One and the rest of the book.  But if we take Mill’s epistemic claims seriously (which is decidedly not the same as believing that they are empirically sound), then Chapter One can be understood as largely about actions that do not cause harms to agents other than the actor, and Chapter Two can be seen as an argument for why some other-regarding and harm-producing speech acts may, in the aggregate, produce sufficient social epistemic benefits as to be deserving of a special immunity from state control.  It is true, as Blasi argues, that a concern for the character-building nature of both autonomy and confrontation with harmful speech may render Chapters One and Two compatible with each other, but that compatibility requires relegating Mill’s famous epistemic arguments to a secondary role, and requires seeing Mill in less utilitarian and more individualistic terms than he himself professed.

A resurgence of interest in virtue ethics has spawned its counterpart in legal theory.  But in both legal theory and in moral theory, virtue ethics’ focus on the character of the moral agent (or the legal decision-maker) has been coupled with the view that the virtuous deliberator or decision-maker is also particularistic, striving to make the best all-things-considered decision for the particular matter at hand.  The particularism of modern virtue ethics fits well with virtue ethics’ Aristotelian roots, and also with the modern interest in particularism associated with philosophers such as Jonathan Dancy.  But must virtue theory’s focus on the agent’s character necessarily be coupled with particularism?  This paper, a response to a paper by H.L. Ho and to be published in a volume on virtue in law edited by Ho and Amalia Amaya, questions the almost universal conjunction of virtue ethics (and virtuous legal decision-making) with particularism, and suggest that virtue need not be particularistic, and that, in some contexts, virtue, and especially the virtue of humility about one’s own decision-making capacities, may lie in non-particularism.

In a rarely-discussed passage in the Principles of the Penal Code, Jeremy Bentham discussed a category of offenses he labeled presumed, or evidentiary, offenses.  The conduct penalized under such offenses is subject to punishment, Bentham observed, not because it is intrinsically wrong, but instead because engaging in such conduct probabilistically indicates that those who engage in such conduct have done something else that is in fact intrinsically wrong.  Bentham offered as examples of presumed offenses the possession of shipwrecked property with altered markings, and the punishment as infanticide of the failure to report the birth of an infant subsequently found dead.  Nowadays, evidentiary offenses include the punishment as a drug dealer of anyone found in possession of more than a specified quantity of narcotics, and punishing those who enter or leave the country with large amounts of unreported cash, on the assumption that they are likely to be engaged in money laundering or drug trafficking.  Bentham was mildly skeptical of such offenses, but grudgingly accepted their value in light of deficiencies in procedure and in the judiciary.  These days the skepticism is even greater, with courts and commentators in the United States, Canada, the United Kingdom and elsewhere believing that such offenses deny to a defendant the right to establish that he did not in fact engage in the conduct that the presumed offense probabilistically but not necessarily indicates.  On closer analysis, however, such skepticism appears unjustified.  Almost all offenses, and indeed almost all legal rules, are premised on a probabilistic relationship between the behavior the rule encompasses and the behavior that is the rule-maker’s real concern.  Presumed offenses may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules. This paper is forthcoming in Utilitas.

On the Distinction Between Speech and Action

Abstract

The distinction between speech and action lies at the foundation of any individualistic, self-expressive, or autonomy-based account of freedom of speech, and very possibly at the foundation of the very idea of free speech itself. But a close examination of the distinction reveals that the justification for treating speech differently from action, or, more precisely, for treating speech differently from non-speech action, is far less sound than is commonly supposed. In particular, neither the principle of autonomy nor the principle of freedom of thought can explain why speech or even thoughts whose consequences are equivalent to those of other actions are entitled to some special or differential immunity from state control.  The absence of a sound justification for such differentiation casts doubt on both autonomy and freedom of thought justifications for a free speech principle, and may even, although less plainly, challenge the fundamental basis for any form of a free speech principle.

An emerging consensus in certain legal, business, and scholarly communities maintains that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects. The forces inducing manage- rial myopia are easy to spot, typically embodied by activist hedge funds and Wall Street gadflies with outsized appetites for current quarterly earnings. Warnings about the dangers of “short termism” have become so well established, in fact, that they are now driving changes to mainstream practice as courts, regulators and practitioners fashion legal and transactional constraints designed to insulate firms and managers from the influence of investor short-termism. This Article draws on ac- ademic research and a series of case studies to advance the the- sis that the emergent folk wisdom about short-termism is in- complete. A growing literature in behavioral finance and psychology now provides sound reasons to conclude that corpo- rate managers often ...