In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so th... more In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so that the government would be wrong to punish anyone who exercised them. This claim raises fundamental questions about the source of obligation and the limits of legitimacy. These questions of political theory have been given surprisingly little attention by him or his critics. I examine whether strong rights make any sense and conclude that his political theory cannot even generate the minimal prima facie obligation necessary to justify coercion, and hence, law. My solution is to interpret justice in the same way as law. Dworkin resists what I call Justice as Integrity because of concerns about ethical relativism. By considering his more recent works on objectivity and moral truth, I attempt to show that Dworkin's aversion to Moral Constructivism is based on an undue fear of the uncertainty of social practices and an undue faith in the certainty of empirical observation. By reconstructing the interpretive derivations of justice I offer a method to make the idea of obligation, strong rights, and hence, law as integrity, more viable.
Citizens United has stimulated a cottage industry of legal scholarship on corruption. A prominent... more Citizens United has stimulated a cottage industry of legal scholarship on corruption. A prominent stream of this literature is self-consciously atheoretical and suggests that the current state of corruption jurisprudence suffers from a misconceived reliance on liberal political theories and a rejection of the public good. We argue that it is impossible to understand specific acts of corruption without a political theory explaining why such actions are wrong. We show that the current jurisprudence relies on a mistaken intellectual history of the public good and a political theory of American constitutionalism that commodifies citizenship and treats political participation as a market good. Pace Teachout, we cannot draw the bright lines many legal scholars desire without a better political theory of the primary goods we want to protect.
Governance and the Economy in Africa:Tools for Analysis and Reform of Corruption. Contents. Forew... more Governance and the Economy in Africa:Tools for Analysis and Reform of Corruption. Contents. Foreword, by Anne Williams, USAID Mission Director, Dakar, Senegal; About this Volume; Chapter 1: Governance, Development, and the Quality of Institutions; ...
Many of the policies of the War on Terror; have been controversial because of their possible viol... more Many of the policies of the War on Terror; have been controversial because of their possible violation of the law and redistribution of power amongst the different branches of government. In this article I show that the problem with these policies goes much deeper. By showing the necessary conceptual elements of law, I show that many of these policies, are not simply illegal but they fail to be law governed at all by any conception of law. This violates the foundations of American constitutionalism that subordinates every government action to the rule of law.
Do government officials, who have taken an affirmative oath to uphold the constitution, have any ... more Do government officials, who have taken an affirmative oath to uphold the constitution, have any legitimate claim to disobey the law? We argue that they do. Indeed, the nature of law itself requires officials to have some mechanism to enforce the secondary rules or if one prefers, the associative obligations, upon which their authority is based. When institutional structures and official behavior makes it impossible for officials to subordinate government activity to the rule of law, then other officials may be excused from legal constraints for the limited purpose of ensuring accountability. We use arguments from legal, constitutional and political theory to illustrate this narrow excuse. [Journal: "Law, Culture and the Humanities" (2017)]
SUNY series in American Constitutionalism Robert J. Spitzer, editor ... Justice as Integrity Tole... more SUNY series in American Constitutionalism Robert J. Spitzer, editor ... Justice as Integrity Tolerance and the Moral Momentum of Law David Fagelson State University of New York Press ... Published by State University of New York Press, Albany Chapter 4 reprinted by permission of Sage ...
Do government officials, who have taken an affirmative oath to uphold the constitution, have any ... more Do government officials, who have taken an affirmative oath to uphold the constitution, have any legitimate claim to disobey the law? We argue that they do. Indeed, the nature of law itself requires officials to have some mechanism to enforce the secondary rules or if one prefers, the associative obligations, upon which their authority is based. When institutional structures and official behavior makes it impossible for officials to subordinate government activity to the rule of law, then other officials may be excused from legal constraints for the limited purpose of ensuring accountability. We use arguments from legal, constitutional and political theory to illustrate this narrow excuse. [Journal: "Law, Culture and the Humanities" (2017)]
Many of the policies of the “War on Terror” have been controversial because of their possible vio... more Many of the policies of the “War on Terror” have been controversial because of their possible violation of the law and redistribution of power amongst the different branches of government. In this article I show that the problem with these policies goes much deeper. By showing the necessary conceptual elements of law, I show that many of these policies, are not simply illegal but they fail to be law governed at all by any conception of law. This violates the foundations of American constitutionalism that subordinates every government action to the rule of law.
While Dworkin views law as the embodiment of moral principles, the sources of those principles th... more While Dworkin views law as the embodiment of moral principles, the sources of those principles that he identifies do not supply the justification of force he ascribes to them. In this article I propose that judges interpret justice from what I call the social forms of society. I call this method ...
Abstract. The idea of Westphalian sovereignty has been waning in the face of renewed support for ... more Abstract. The idea of Westphalian sovereignty has been waning in the face of renewed support for individual human rights. One of the more audacious proposalsforanewinternationalorderisofferedbyJohnRawls,whocallsfor a Society of ...
In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so th... more In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so that the government would be wrong to punish anyone who exercised them. This claim raises fundamental questions about the source of obligation and the limits of legitimacy. These questions of political theory have been given surprisingly little attention by him or his critics. I examine whether strong rights make any sense and conclude that his political theory cannot even generate the minimal prima facie obligation necessary to justify coercion, and hence, law. My solution is to interpret justice in the same way as law. Dworkin resists what I call Justice as Integrity because of concerns about ethical relativism. By considering his more recent works on objectivity and moral truth, I attempt to show that Dworkin's aversion to Moral Constructivism is based on an undue fear of the uncertainty of social practices and an undue faith in the certainty of empirical observation. By reconstructing the interpretive derivations of justice I offer a method to make the idea of obligation, strong rights, and hence, law as integrity, more viable. proposed, they make them more viable.
I attempt to show that toleranceis part of the idea of American law: for any legalsystem must inc... more I attempt to show that toleranceis part of the idea of American law: for any legalsystem must incorporate the capacity toaccommodate differences in order to meet theminimal standards necessary to apply a rule. There are multiple forms of tolerance, however, some ofwhich are inconsistent with liberal principles.By examining several lines of jurisprudencerelating to speech and privacy, I show thatAmerican law reflects elements of bothliberalism and conservative communitarianism. I attempt to reconcile these by suggesting they actuallyreflect a perfectionist foundation of liberalautonomy. That is to say, American law doesnot value moral autonomy and reasoned discoursebecause they protect neutrality betweendifferent ideas of the good life: rather, thelaw reflects an idea of the good life that seesmoral autonomy as advancing well being.This perfectionist liberal foundation oftolerance reflects the evolution of Americanlaw. Through slavery, sexism and the controlof erotic speech we see how it expanded theideas of who is capable of rationaldiscourse and what activities incorporatethe exercise of reasoned moral autonomy;and how the law imposes this autonomouscapacity on individuals as the price ofcitizenship, even if they belong to groups whodeny the value of reason or autonomy.
This Essay explains why lawyers have an ethical obligation to
provide pro bono legal services to... more This Essay explains why lawyers have an ethical obligation to
provide pro bono legal services to the poor. Most lawyers addressing
this issue rely on the various state codes, the ABA Model
Code or judicial decisions to explain the nature of this professional
obligation. This approach misconstrues the foundation and force
of ethical obligations which do not derive simply from doctrinal interpretations
of professional codes or courts of law. Using the tools
of normative philosophy, this Essay will demonstrate how this
ethical obligation arises based on the status and role of the legal
profession in American society and, indeed, the profession's own
ethical foundations.
The various initiatives undertaken by the Reagan Administration
in what has come to be known as ... more The various initiatives undertaken by the Reagan Administration
in what has come to be known as the Iran-Contra affair have reignited
an old struggle for control over foreign policy.' While the
circumstances of this particular controversy are somewhat unusual,
the strife between Congress and the Executive has endured, within
certain boundaries, since the inception of the Republic. The contours
of this debate are well known to anyone with a passing
knowledge of the Constitution. Indeed, their familiarity risks obscuring
the important principles which are at stake. Yet the sight of
a rear admiral and a lieutenant colonel claiming exemption from
the law and from political accountability in pursuit of national security
goals" helped focus attention on the fundamental constitutional
values implicit in the recent political furor. These values are
nothing less than the political accountability of the military and the intelligence services, democratic control of foreign policy, and the
rule of law. The assertion by President Reagan and his associates of
remarkable executive prerogatives in the area of national security
requires us to reconsider who, under the Constitution, is entitled to
participate in the creation and implementation of foreign policy and
how the distribution of this power between the branches of government
preserves the delicate balance between secrecy and democracy.
In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so th... more In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so that the government would be wrong to punish anyone who exercised them. This claim raises fundamental questions about the source of obligation and the limits of legitimacy. These questions of political theory have been given surprisingly little attention by him or his critics. I examine whether strong rights make any sense and conclude that his political theory cannot even generate the minimal prima facie obligation necessary to justify coercion, and hence, law. My solution is to interpret justice in the same way as law. Dworkin resists what I call Justice as Integrity because of concerns about ethical relativism. By considering his more recent works on objectivity and moral truth, I attempt to show that Dworkin's aversion to Moral Constructivism is based on an undue fear of the uncertainty of social practices and an undue faith in the certainty of empirical observation. By reconstructing the interpretive derivations of justice I offer a method to make the idea of obligation, strong rights, and hence, law as integrity, more viable.
Citizens United has stimulated a cottage industry of legal scholarship on corruption. A prominent... more Citizens United has stimulated a cottage industry of legal scholarship on corruption. A prominent stream of this literature is self-consciously atheoretical and suggests that the current state of corruption jurisprudence suffers from a misconceived reliance on liberal political theories and a rejection of the public good. We argue that it is impossible to understand specific acts of corruption without a political theory explaining why such actions are wrong. We show that the current jurisprudence relies on a mistaken intellectual history of the public good and a political theory of American constitutionalism that commodifies citizenship and treats political participation as a market good. Pace Teachout, we cannot draw the bright lines many legal scholars desire without a better political theory of the primary goods we want to protect.
Governance and the Economy in Africa:Tools for Analysis and Reform of Corruption. Contents. Forew... more Governance and the Economy in Africa:Tools for Analysis and Reform of Corruption. Contents. Foreword, by Anne Williams, USAID Mission Director, Dakar, Senegal; About this Volume; Chapter 1: Governance, Development, and the Quality of Institutions; ...
Many of the policies of the War on Terror; have been controversial because of their possible viol... more Many of the policies of the War on Terror; have been controversial because of their possible violation of the law and redistribution of power amongst the different branches of government. In this article I show that the problem with these policies goes much deeper. By showing the necessary conceptual elements of law, I show that many of these policies, are not simply illegal but they fail to be law governed at all by any conception of law. This violates the foundations of American constitutionalism that subordinates every government action to the rule of law.
Do government officials, who have taken an affirmative oath to uphold the constitution, have any ... more Do government officials, who have taken an affirmative oath to uphold the constitution, have any legitimate claim to disobey the law? We argue that they do. Indeed, the nature of law itself requires officials to have some mechanism to enforce the secondary rules or if one prefers, the associative obligations, upon which their authority is based. When institutional structures and official behavior makes it impossible for officials to subordinate government activity to the rule of law, then other officials may be excused from legal constraints for the limited purpose of ensuring accountability. We use arguments from legal, constitutional and political theory to illustrate this narrow excuse. [Journal: "Law, Culture and the Humanities" (2017)]
SUNY series in American Constitutionalism Robert J. Spitzer, editor ... Justice as Integrity Tole... more SUNY series in American Constitutionalism Robert J. Spitzer, editor ... Justice as Integrity Tolerance and the Moral Momentum of Law David Fagelson State University of New York Press ... Published by State University of New York Press, Albany Chapter 4 reprinted by permission of Sage ...
Do government officials, who have taken an affirmative oath to uphold the constitution, have any ... more Do government officials, who have taken an affirmative oath to uphold the constitution, have any legitimate claim to disobey the law? We argue that they do. Indeed, the nature of law itself requires officials to have some mechanism to enforce the secondary rules or if one prefers, the associative obligations, upon which their authority is based. When institutional structures and official behavior makes it impossible for officials to subordinate government activity to the rule of law, then other officials may be excused from legal constraints for the limited purpose of ensuring accountability. We use arguments from legal, constitutional and political theory to illustrate this narrow excuse. [Journal: "Law, Culture and the Humanities" (2017)]
Many of the policies of the “War on Terror” have been controversial because of their possible vio... more Many of the policies of the “War on Terror” have been controversial because of their possible violation of the law and redistribution of power amongst the different branches of government. In this article I show that the problem with these policies goes much deeper. By showing the necessary conceptual elements of law, I show that many of these policies, are not simply illegal but they fail to be law governed at all by any conception of law. This violates the foundations of American constitutionalism that subordinates every government action to the rule of law.
While Dworkin views law as the embodiment of moral principles, the sources of those principles th... more While Dworkin views law as the embodiment of moral principles, the sources of those principles that he identifies do not supply the justification of force he ascribes to them. In this article I propose that judges interpret justice from what I call the social forms of society. I call this method ...
Abstract. The idea of Westphalian sovereignty has been waning in the face of renewed support for ... more Abstract. The idea of Westphalian sovereignty has been waning in the face of renewed support for individual human rights. One of the more audacious proposalsforanewinternationalorderisofferedbyJohnRawls,whocallsfor a Society of ...
In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so th... more In Taking Rights Seriously Dworkin claimed that people had strong rights to disobey the law so that the government would be wrong to punish anyone who exercised them. This claim raises fundamental questions about the source of obligation and the limits of legitimacy. These questions of political theory have been given surprisingly little attention by him or his critics. I examine whether strong rights make any sense and conclude that his political theory cannot even generate the minimal prima facie obligation necessary to justify coercion, and hence, law. My solution is to interpret justice in the same way as law. Dworkin resists what I call Justice as Integrity because of concerns about ethical relativism. By considering his more recent works on objectivity and moral truth, I attempt to show that Dworkin's aversion to Moral Constructivism is based on an undue fear of the uncertainty of social practices and an undue faith in the certainty of empirical observation. By reconstructing the interpretive derivations of justice I offer a method to make the idea of obligation, strong rights, and hence, law as integrity, more viable. proposed, they make them more viable.
I attempt to show that toleranceis part of the idea of American law: for any legalsystem must inc... more I attempt to show that toleranceis part of the idea of American law: for any legalsystem must incorporate the capacity toaccommodate differences in order to meet theminimal standards necessary to apply a rule. There are multiple forms of tolerance, however, some ofwhich are inconsistent with liberal principles.By examining several lines of jurisprudencerelating to speech and privacy, I show thatAmerican law reflects elements of bothliberalism and conservative communitarianism. I attempt to reconcile these by suggesting they actuallyreflect a perfectionist foundation of liberalautonomy. That is to say, American law doesnot value moral autonomy and reasoned discoursebecause they protect neutrality betweendifferent ideas of the good life: rather, thelaw reflects an idea of the good life that seesmoral autonomy as advancing well being.This perfectionist liberal foundation oftolerance reflects the evolution of Americanlaw. Through slavery, sexism and the controlof erotic speech we see how it expanded theideas of who is capable of rationaldiscourse and what activities incorporatethe exercise of reasoned moral autonomy;and how the law imposes this autonomouscapacity on individuals as the price ofcitizenship, even if they belong to groups whodeny the value of reason or autonomy.
This Essay explains why lawyers have an ethical obligation to
provide pro bono legal services to... more This Essay explains why lawyers have an ethical obligation to
provide pro bono legal services to the poor. Most lawyers addressing
this issue rely on the various state codes, the ABA Model
Code or judicial decisions to explain the nature of this professional
obligation. This approach misconstrues the foundation and force
of ethical obligations which do not derive simply from doctrinal interpretations
of professional codes or courts of law. Using the tools
of normative philosophy, this Essay will demonstrate how this
ethical obligation arises based on the status and role of the legal
profession in American society and, indeed, the profession's own
ethical foundations.
The various initiatives undertaken by the Reagan Administration
in what has come to be known as ... more The various initiatives undertaken by the Reagan Administration
in what has come to be known as the Iran-Contra affair have reignited
an old struggle for control over foreign policy.' While the
circumstances of this particular controversy are somewhat unusual,
the strife between Congress and the Executive has endured, within
certain boundaries, since the inception of the Republic. The contours
of this debate are well known to anyone with a passing
knowledge of the Constitution. Indeed, their familiarity risks obscuring
the important principles which are at stake. Yet the sight of
a rear admiral and a lieutenant colonel claiming exemption from
the law and from political accountability in pursuit of national security
goals" helped focus attention on the fundamental constitutional
values implicit in the recent political furor. These values are
nothing less than the political accountability of the military and the intelligence services, democratic control of foreign policy, and the
rule of law. The assertion by President Reagan and his associates of
remarkable executive prerogatives in the area of national security
requires us to reconsider who, under the Constitution, is entitled to
participate in the creation and implementation of foreign policy and
how the distribution of this power between the branches of government
preserves the delicate balance between secrecy and democracy.
Uploads
Papers by David Fagelson
these policies goes much deeper. By showing the necessary conceptual elements of law, I show that many of these policies, are not simply illegal but they fail to be law governed at all by any conception of law. This violates the foundations of
American constitutionalism that subordinates every government action to the rule of law.
provide pro bono legal services to the poor. Most lawyers addressing
this issue rely on the various state codes, the ABA Model
Code or judicial decisions to explain the nature of this professional
obligation. This approach misconstrues the foundation and force
of ethical obligations which do not derive simply from doctrinal interpretations
of professional codes or courts of law. Using the tools
of normative philosophy, this Essay will demonstrate how this
ethical obligation arises based on the status and role of the legal
profession in American society and, indeed, the profession's own
ethical foundations.
in what has come to be known as the Iran-Contra affair have reignited
an old struggle for control over foreign policy.' While the
circumstances of this particular controversy are somewhat unusual,
the strife between Congress and the Executive has endured, within
certain boundaries, since the inception of the Republic. The contours
of this debate are well known to anyone with a passing
knowledge of the Constitution. Indeed, their familiarity risks obscuring
the important principles which are at stake. Yet the sight of
a rear admiral and a lieutenant colonel claiming exemption from
the law and from political accountability in pursuit of national security
goals" helped focus attention on the fundamental constitutional
values implicit in the recent political furor. These values are
nothing less than the political accountability of the military and the intelligence services, democratic control of foreign policy, and the
rule of law. The assertion by President Reagan and his associates of
remarkable executive prerogatives in the area of national security
requires us to reconsider who, under the Constitution, is entitled to
participate in the creation and implementation of foreign policy and
how the distribution of this power between the branches of government
preserves the delicate balance between secrecy and democracy.
Books by David Fagelson
these policies goes much deeper. By showing the necessary conceptual elements of law, I show that many of these policies, are not simply illegal but they fail to be law governed at all by any conception of law. This violates the foundations of
American constitutionalism that subordinates every government action to the rule of law.
provide pro bono legal services to the poor. Most lawyers addressing
this issue rely on the various state codes, the ABA Model
Code or judicial decisions to explain the nature of this professional
obligation. This approach misconstrues the foundation and force
of ethical obligations which do not derive simply from doctrinal interpretations
of professional codes or courts of law. Using the tools
of normative philosophy, this Essay will demonstrate how this
ethical obligation arises based on the status and role of the legal
profession in American society and, indeed, the profession's own
ethical foundations.
in what has come to be known as the Iran-Contra affair have reignited
an old struggle for control over foreign policy.' While the
circumstances of this particular controversy are somewhat unusual,
the strife between Congress and the Executive has endured, within
certain boundaries, since the inception of the Republic. The contours
of this debate are well known to anyone with a passing
knowledge of the Constitution. Indeed, their familiarity risks obscuring
the important principles which are at stake. Yet the sight of
a rear admiral and a lieutenant colonel claiming exemption from
the law and from political accountability in pursuit of national security
goals" helped focus attention on the fundamental constitutional
values implicit in the recent political furor. These values are
nothing less than the political accountability of the military and the intelligence services, democratic control of foreign policy, and the
rule of law. The assertion by President Reagan and his associates of
remarkable executive prerogatives in the area of national security
requires us to reconsider who, under the Constitution, is entitled to
participate in the creation and implementation of foreign policy and
how the distribution of this power between the branches of government
preserves the delicate balance between secrecy and democracy.