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The Early Years of First Amendment Lochnerism
COLUMBIA LAW REVIEW VOL. 116 DECEMBER 2016 NO. 8 ARTICLES THE EARLY YEARS OF FIRST AMENDMENT LOCHNERISM Jeremy K. Kessler* From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith—the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First *. Associate Professor and Milton Handler Fellow, Columbia Law School. FoR conversation and counsel along the way, -
Liberal Egalitarianism and the Harm Principle
University of Massachusetts Amherst ScholarWorks@UMass Amherst Economics Department Working Paper Series Economics 2013 Liberal Egalitarianism and the Harm Principle Michele Lombardi University of Glasgow Kaname Miyagishima Waseda University Roberto Veneziani University of Massachusetts - Amherst Follow this and additional works at: https://scholarworks.umass.edu/econ_workingpaper Part of the Economics Commons Recommended Citation Lombardi, Michele; Miyagishima, Kaname; and Veneziani, Roberto, "Liberal Egalitarianism and the Harm Principle" (2013). Economics Department Working Paper Series. 158. https://doi.org/10.7275/4273869 This Article is brought to you for free and open access by the Economics at ScholarWorks@UMass Amherst. It has been accepted for inclusion in Economics Department Working Paper Series by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. DEPARTMENT OF ECONOMICS Working Paper Liberal Egalitarianism and the Harm Principle By Michele Lombardi K name M yagishima Roberto Veneziani a i Working Paper 2013-07 UNIVERSITY OF MASSACHUSETTS AMHERST Liberal Egalitarianism and the Harm Principle Michele Lombardi,1 Kaname Miyagishima,2 Roberto Veneziani3 May 22, 2013 1Adam Smith Business School, University of Glasgow, Glasgow, G12 8QQ, United Kingdom. E-mail: [email protected]. 2JSPS Research Fellow, School of Political Science and Economics, Waseda University, 1-104 Totsukamachi, Shinjuku-ku, Tokyo, 169-8050, Japan. E-mail: [email protected] 3(Corresponding author) School of Economics and Finance, Queen Mary University of London, London E1 4NS, United Kingdom, and Department of Economics, University of Massachusetts, Amherst, USA. E-mail: [email protected]. Abstract This paper analyses the implications of classical liberal and libertarian approaches for dis- tributive justice in the context of social welfare orderings. -
A Critique of John Stuart Mill Chris Daly
Southern Illinois University Carbondale OpenSIUC Honors Theses University Honors Program 5-2002 The Boundaries of Liberalism in a Global Era: A Critique of John Stuart Mill Chris Daly Follow this and additional works at: http://opensiuc.lib.siu.edu/uhp_theses Recommended Citation Daly, Chris, "The Boundaries of Liberalism in a Global Era: A Critique of John Stuart Mill" (2002). Honors Theses. Paper 131. This Dissertation/Thesis is brought to you for free and open access by the University Honors Program at OpenSIUC. It has been accepted for inclusion in Honors Theses by an authorized administrator of OpenSIUC. For more information, please contact [email protected]. r The Boundaries of Liberalism in a Global Era: A Critique of John Stuart Mill Chris Daly May 8, 2002 r ABSTRACT The following study exanunes three works of John Stuart Mill, On Liberty, Utilitarianism, and Three Essays on Religion, and their subsequent effects on liberalism. Comparing the notion on individual freedom espoused in On Liberty to the notion of the social welfare in Utilitarianism, this analysis posits that it is impossible for a political philosophy to have two ultimate ends. Thus, Mill's liberalism is inherently flawed. As this philosophy was the foundation of Mill's progressive vision for humanity that he discusses in his Three Essays on Religion, this vision becomes paradoxical as well. Contending that the neo-liberalist global economic order is the contemporary parallel for Mill's religion of humanity, this work further demonstrates how these philosophical flaws have spread to infect the core of globalization in the 21 st century as well as their implications for future international relations. -
Can Justice Be Based on Consent?*
The Journal of Political Philosophy: Volume 12, Number 1, 2004, pp. 79–101 Can Justice Be Based on Consent?* Frank Lovett Political Science, Columbia University HIS article will discuss a general class of theories that attempt to base a Tnormative account of justice on consent-giving procedures. Contemporary political philosophers offer many different accounts of justice, but at present consent-based theories are probably the most popular. Notwithstanding their (often understandable) appeal, I will argue they cannot possibly succeed. All consent-based theories trade on a crucial ambiguity as to whether they are supposed to be understood as voluntarist accounts of justice on the one hand, or as rationalist accounts on the other. In the former case, consent-based theories fail because they are at best indeterminate and at worst incoherent; in the latter case, they fail because they are superfluous. I will refer to this fatal ambiguity as “Cassirer’s Dilemma.” Interestingly, Cassirer’s Dilemma is not at all new (although its relevance for contemporary consent-based theories does not seem to have been noticed previously): on the contrary, it may be among the oldest problems plaguing western moral and political philosophy. Faced with this insurmountable difficulty, I believe we ought to abandon proceduralism and focus instead on developing substantive accounts of justice. These admittedly bold claims will be explained and defended in due course. Before going much further, however, it will be useful to clarify a few concepts as they will be employed in this article. Although the terms “just” and “unjust” can be applied to a wide range of political institutions, legal regimes, public policies, individual conduct, and so on, contemporary political philosophers tend to abstract from such particular applications so as to focus in a general manner on what are often called the principles of justice. -
Liberty, Property and Rationality
Liberty, Property and Rationality Concept of Freedom in Murray Rothbard’s Anarcho-capitalism Master’s Thesis Hannu Hästbacka 13.11.2018 University of Helsinki Faculty of Arts General History Tiedekunta/Osasto – Fakultet/Sektion – Faculty Laitos – Institution – Department Humanistinen tiedekunta Filosofian, historian, kulttuurin ja taiteiden tutkimuksen laitos Tekijä – Författare – Author Hannu Hästbacka Työn nimi – Arbetets titel – Title Liberty, Property and Rationality. Concept of Freedom in Murray Rothbard’s Anarcho-capitalism Oppiaine – Läroämne – Subject Yleinen historia Työn laji – Arbetets art – Level Aika – Datum – Month and Sivumäärä– Sidoantal – Number of pages Pro gradu -tutkielma year 100 13.11.2018 Tiivistelmä – Referat – Abstract Murray Rothbard (1926–1995) on yksi keskeisimmistä modernin libertarismin taustalla olevista ajattelijoista. Rothbard pitää yksilöllistä vapautta keskeisimpänä periaatteenaan, ja yhdistää filosofiassaan klassisen liberalismin perinnettä itävaltalaiseen taloustieteeseen, teleologiseen luonnonoikeusajatteluun sekä individualistiseen anarkismiin. Hänen tavoitteenaan on kehittää puhtaaseen järkeen pohjautuva oikeusoppi, jonka pohjalta voidaan perustaa vapaiden markkinoiden ihanneyhteiskunta. Valtiota ei täten Rothbardin ihanneyhteiskunnassa ole, vaan vastuu yksilöllisten luonnonoikeuksien toteutumisesta on kokonaan yksilöllä itsellään. Tutkin työssäni vapauden käsitettä Rothbardin anarko-kapitalistisessa filosofiassa. Selvitän ja analysoin Rothbardin ajattelun keskeisimpiä elementtejä niiden filosofisissa, -
Contract Law Through the Lens of Laissez-Faire Richard A
University of Chicago Law School Chicago Unbound Coase-Sandor Working Paper Series in Law and Coase-Sandor Institute for Law and Economics Economics 1997 Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire Richard A. Epstein Follow this and additional works at: https://chicagounbound.uchicago.edu/law_and_economics Part of the Law Commons Recommended Citation Richard A. Epstein, "Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire" (Coase-Sandor Institute for Law & Economics Working Paper No. 49, 1997). This Working Paper is brought to you for free and open access by the Coase-Sandor Institute for Law and Economics at Chicago Unbound. It has been accepted for inclusion in Coase-Sandor Working Paper Series in Law and Economics by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire by Richard A. Epstein* Introduction: A Fallen Theory? Laissez-faire capitalism, and its associated doctrine of freedom of contract, had many stalwart defenders during the nineteenth century. But it has received a rocky reception from many legal and philosophical commentators in the twentieth century. Freedom of contract often been pronounced "dead on arrival" as an organizing principle for complex contemporary societies. That principle has been said to be insensitive to differences in wealth, status, position and power that make the exercise of contractual choice a myth for the weak and dispossessed. Within the legal literature, it has been attacked as ignoring the large concentrations of wealth that distort market processes and that trample down the rights of consumers and workers. -
Principle of Liberty Or Harm Principle?
Principle of Liberty or Harm Principle? Paola Cavalieri Etica & Animali Milan .----.~'~ /---.:'"\........ \ yet, the class also includes nonsexual offenses. One of these is cruelty to animals. The view that the rationale of the law could be, in addition to the protection ofone individual from another, also the punishment of "moral wickedness", has been called "legal moralism."2 Henceforth, I shall use the term "morality" to refer to the corpus of beliefs and customs that are allegedly impaired by the "victimless crimes" and that legal moralism aims to defend; and the term "morals" to mean what is covered by the laws intended to protect one individual from another. In this sense, rape can be defined as a crime against morals, In the framework of Western democracies, the while homosexual relations between consenting adults movement for the prevention of cruelty to animals has can be-and often is-considered a crime against been seen, ever since it dawned, as a lobby-a pressure morality. Legal moralism, usually endorsed by group born to defend some spiritual inclinations, or conservatives, is criticized by liberals. The view that it subsidiary preferences, of some members of the political may be possible to defend by legal, or else social, community. In the first case, the most suitable sanctions the conformity to a particular code ofbehavior comparison is with a religious sect, or with a moralizing that is shared by the majority at a certain time seems organization; in the second one, with some association unacceptable to those for whom the memory of the of a more or less corporate nature. -
Murray N. Rothbard: Mr. Libertarian
Murray N. Rothbard: Mr. Libertarian di Wendy McElroy Murray N. Rothbard (1926-1995) – the greatest libertarian theorist of the 20th century – expressed what he considered to be the central political issue confronting mankind. He wrote, “My own basic perspective on the history of man...is to place central importance on the great conflict which is eternally waged between Liberty and Power.”1 Liberty v. Power. In its most blatant form, the struggle manifests itself as war between the peaceful, productive individual and the intrusive State that usurps those products. The tension between freedom and authority is hardly a new subject for political commentary. But Rothbard managed to bring a newness to everything he touched intellectually. Rothbard was a system builder. Unsatisfied with past attempts to present a “philosophy of freedom,” Rothbard sought to create an interdisciplinary system of thought that used the struggle between Liberty and Power as its integrating theme. He explained, “Strands and remnants of libertarian doctrines are, indeed, all around us. ... But only libertarianism takes these strands and remnants and integrates them into a mighty, logical, and consistent system.”2 Without such a systematic world view, he believed Liberty could not succeed. In forty-five years of scholarship and activism, Rothbard produced over two dozen books and thousands of articles that made sense of the world from a radical individualist perspective. In doing so, it is no exaggeration to say that Rothbard created the modern libertarian movement.3 Specifically, he refined and fused together: • natural law theory, using a basic Aristotelian or Randian approach; • the radical civil libertarianism of 19th century individualist-anarchists, especially Lysander Spooner and Benjamin Tucker; • the free market philosophy of Austrian economists, in particular Ludwig von Mises, into which he incorporated sweeping economic histories; and, • the foreign policy of the American Old Right – that is, isolationism. -
Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching
Review Essay Constitutionalism and Political Science: Imaginative Scholarship, Unimaginative Teaching Mark A. Graber n 1983 Martin Shapiro worried that the “new juris- Recent developments in the public law subfield have prudence of values” being promoted by the new gener- confirmed some of these fears, while alleviating others. Iation of public law scholars in political science would Prominent scholars continue paying disproportionate atten- “serve as a cover for slipping back into playing ‘little law tion to American constitutional law as handed down by professor’ for undergraduates.”1 Proponents of the “juris- the Supreme Court of the United States. Twenty-nine of prudence of values” in political science, who engaged in the forty-two awards for scholarship given out since 1990 constitutional theorizing about individual rights and the by the Law and Courts section of the American Political structure of governing institutions, would “writ[e] con- Science Association have gone to works on the Supreme ventional case law doctrine” that “contain[ed] no distinc- Court or American constitutional law. This public law tive political analysis.” Worse, the fruits of the behavioral scholarship, however, speaks with political science voices. revolution might rot should normative concerns take cen- Both behavioral and humanistic scholars are developing ter stage in public law inquiry. Rather than further inte- distinctive empirical and normative insights into Ameri- grate the study of courts into mainstream political science, can constitutional law, theory, and politics. Their work public law scholars would spend their time telling Supreme makes connections between ongoing constitutionalist Court justices how to do their jobs. Shapiro predicted, themes and such traditional concerns of political science “[P]olitical scientists trained in the empirically oriented as political development, rational agency, comparative analy- ‘American politics’ field will be shoved to the edges of sis, political institutions, and political philosophy. -
Libertarian Corporatism Is Not an Oxymoron
ROGERS.TOPRINTER (DO NOT DELETE) 6/14/2016 5:06 PM Libertarian Corporatism is Not an Oxymoron Brishen Rogers* Introduction Our constitutional democracy and our republican form of government, Joseph Fishkin and William Forbath argue in their recent work, depend on “a measure of economic and social democracy.”1 A truly democratic state, in their view, cannot just regulate powerful actors. It must also enable or positively encourage “robust intermediate organizations,” especially unions, to “offset the political power of concentrated wealth.”2 The history of the welfare state bears out this point. It is no accident that the era of mass unionization was also an era of quite progressive taxation, relatively tame executive compensation, and definancialization.3 Nor is it an accident that the decline of the welfare state, the decline of the labor movement, and the rise in income inequality have occurred in tandem in virtually every advanced economy.4 Mainstream policy debate around inequality, which focuses largely on ensuring progressive taxation, often misses this lesson.5 And yet empowering secondary associations can be very difficult in a constitutional culture that prizes individual liberty. It is not enough to just protect workers’ freedom to choose unionization while leaving other property relations intact,6 since economic elites will generally resist * Associate Professor, Temple University Beasley School of Law, [email protected]. The research leading up to this Essay was supported in part by the Roosevelt Institute’s Future of Work Initiative. For helpful comments and conversations, thanks to Willy Forbath, Joey Fishkin, and participants in the Texas Law Review Symposium on the Constitution and Economic Inequality. -
Interpretations of Mill's Harm Principle and the Economic Implications Therein
Georgia State University ScholarWorks @ Georgia State University Political Science Theses Department of Political Science Fall 11-16-2012 Beyond Libertarianism: Interpretations of Mill's Harm Principle and the Economic Implications Therein Matthew A. Towery Georgia State University Follow this and additional works at: https://scholarworks.gsu.edu/political_science_theses Recommended Citation Towery, Matthew A., "Beyond Libertarianism: Interpretations of Mill's Harm Principle and the Economic Implications Therein." Thesis, Georgia State University, 2012. https://scholarworks.gsu.edu/political_science_theses/45 This Thesis is brought to you for free and open access by the Department of Political Science at ScholarWorks @ Georgia State University. It has been accepted for inclusion in Political Science Theses by an authorized administrator of ScholarWorks @ Georgia State University. For more information, please contact [email protected]. BEYOND LIBERTARIANISM: INTERPRETATIONS OF MILL’S HARM PRINCIPLE AND THE ECONOMIC IMPLICATIONS THEREIN by MATTHEW TOWERY Under the Direction of Mario Feit ABSTRACT The thesis will examine the harm principle, as originally described by John Stuart Mill. In doing so, it will defend that, though unintended, the harm principle may justify several principles of distributive justice. To augment this analysis, the paper will examine several secondary au- thors’ interpretations of the harm principle, including potential critiques of the thesis itself. INDEX WORDS: Mill, Harm principle, Libertarianism, Redistribution, -
A Ripstein Beyond the Harm Principle Revised
Beyond the Harm Principle* Arthur Ripstein University of Toronto Draft: do not quote or circulate without permission. In On Liberty, just a few sentences after he introduces his famous “harm principle,” John Stuart Mill writes "The only part of the conduct of anyone, for which is he is answerable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his body and mind, the individual is sovereign." My aim is to argue that a commitment to individual sovereignty and a sphere of action in which you are answerable only to yourself requires that we abandon the harm principle. This may seem surprising. The harm principle is often thought to be the centerpiece of liberal thinking about the criminal law. Non-liberal régimes regard the criminal law as an instrument to be used for broader moral purposes, whenever it can be used to make (some) people's lives go better; liberal defenders of the harm principle insist that the only legitimate occasion for using the criminal law to limit liberty is to protect people from each other. The liberal commitments of the harm principle go even deeper, because the presumption in favour of liberty and the idea of protecting people from each other combine to generate a presumption in favour of responsibility – aside from narrow exceptions for incitement to crime, one person cannot be prohibited from doing something just because it will lead her or someone else to do something prohibited. So even if it could be shown that the avoidance of vice will lead to a reduction in other crime, that would not be sufficient reason for criminalizing it.