Category Archives: Legal Philosophy

The Cardozo Law Review has a symposium volume, “Law and Event,” on the work of Alan Badiou.

I don't have time to read it.

It seems I will be teaching Jurisprudence again next year after a long hiatus. (That link is to the old syllabus; it will change some.)

Although I start with The Case of the Speluncean Explorers, I think, slightly wistfully, that I won’t be able to include this modern version from Legal Fiction.

I suppose if I'm an -ian anything then I'm a Habermasian, at least when it comes to political theory. That doesn't mean, however, that I always agree with the great man's recent political writings; sometimes yes, sometimes no.

This translation by Brett Marston of a fragment of a recent statement by Habermas (in a debate with then-Cardinal Ratzinger, no less!), certainly makes it sound like this essay would be one of the ones I agree with. I'm very gratefull for this partial translation (Thanks, Bret!), and would love a pointer to a full translation of both parts of the debate if anyone knows of one.

It seems obvious to me that so long as there is belief there is a place for religion in politics. People should not check their ethical commitments before they reach the ballot box. But in a pluralistic society it doesn't follow that the state should be enlisted to enforce religious dictates. Nor does it necessarily follow, although here things get more complex, that an elected official should vote her constituents' wishes over her faith — or, for that matter, vice versa.

The tricky part of course is figuring out what are the basic moral commands that can't be compromised. For some, it's abortion, poverty in the face of plenty, the death penalty, pornography, or torture, and in my mind each of those views is worthy of respect — including the ones I disagree with. When they don't command consensus, and I think not even the ban on torture does any more, they should be discussed, as respectfully as possible.

One of the classic entry-level conundrums we like to tease students with in Jurisprudence (a course about legal philosophy and/or the theory of law, and yes they're different) is the classic “No Vehicles in the Park” problem posed by positivist theories of law, and particularly associated with the work of HLA Hart and Lon Fuller.

The problem is simple. Suppose there's a sign saying “no vehicles in the park” — what's covered by the rule? This is a somewhat harder question to explain how one answers than to answer, which is part of what makes it fun.

Most people would agree that passenger cars are covered by the rule, but how about ambulances and police cars? (A formalist reading of “vehicle” might tend to banning them; a purpositive reading wouldn't; there are many other possibilities.) Motorcycles, ok, but how about bikes and scooters? Rocket-propelled skateboards? Baby carriages? Wheelchairs? Motorized wheelchairs?

Well, thanks to Orin Kerr, I'm directed to a case in which life imitates theory—Wheelchair DUI Case Dismissed:

A Hernando judge Monday threw out the case against a 46-year-old woman accused of driving drunk while operating her [motorized] wheelchair.

Judge Peyton Hyslop, in one of his last rulings from the bench, said the wheelchair essentially was the woman's legs and that charging her in this case would be tantamount to bringing DUI charges against anyone who was drunk and standing up.

…

The case boiled down to how both sides defined a wheelchair.

In the end, Hyslop determined that allowing the definition of a vehicle to include a wheelchair would violate her constitutional rights to move freely because it would treat disabled people differently from others.

Of course, this wouldn't be America without a bizzaro twist to the case unanticipated by the jurisprudes:

With his departure from the bench, Hyslop will not be around to hear Christensen's other pending case. She was charged with animal cruelty after she was accused of biting the head off a python last May.