Papers by Gerald J . Postema
The Idea of the Rule of Law
Oxford University Press eBooks, Jan 30, 2023
Legal philosophy in the twentieth centur
Springer, Jul 17, 2019
Executive Power Leashed
Oxford University Press eBooks, Jan 30, 2023
Jurisprudence, 2024
Comment on Silvie Delacroix's Habitual Ethics (Hart Publishing, 2019).
unpublished
Mercy and justice are mutually tempering values. This paper explores the world of such intimately... more Mercy and justice are mutually tempering values. This paper explores the world of such intimately entangled values. Our moral life is enriched by a diversity of distinct values that cannot be reduced to dimensions of a single, master value; but value pluralism does not condemn us to moral chaos and moral tragedy. Values often combine in important ways without being merged into a single value. Some pairs or sets of values interact and come into conflict not merely incidentally but systematically, determined by features internal to them. They season, or temper, one another. When they combine in this way, we can find ways to manage responsibly and deliberatively the tensions among them. We cannot rule out the possibility of tragic dilemmas, but at the same time we need not find seeds of tragedy in every conflict of values. This is true, especially, of mercy and justice.
Implicit Law and Principles of Legality
Springer eBooks, 2011
In 1940, Lon Fuller (1940, 2) wrote that the fundamental task of legal philosophy is to give effe... more In 1940, Lon Fuller (1940, 2) wrote that the fundamental task of legal philosophy is to give effective and meaningful direction to the application of human energies in the law. However, he added ruefully, judged by this standard, the preceding quarter century had not been a fruitful one. Despite his sympathy with the realists’ practitioner-focused approach to law, he argued that their theoretical lens distorted our perception of the reality of law and that positivism, in both its classical Austinian form and its latter-day reinventions, fared no better. Against the prevailing jurisprudential winds, Fuller proposed a form of jurisprudence that looked to many readers like a natural-law theory, albeit in a subtly qualified, secular form. In philosophical circles, Fuller’s work is remembered largely for the thesis that there is an “internal morality of law,” the principles of which correspond to familiar principles of the rule of law (a close cousin to the notion of Rechtsstaat).
Nozick on Liberty, Compensation, and the Individual’s Right to Punish
Social Theory and Practice, 1980
Jeremy Bentham: Theorist of Publicity
Preface (To Japanese translation of Utility, Publicity, and Law)
Social Science Research Network, 2022
Dilemmas of Discretion
Oxford University Press eBooks, Jan 30, 2023
Analytic Jurisprudence Confronted
Springer eBooks, 2011
As we have seen, twentieth century legal theory was dominated by various versions of legal positi... more As we have seen, twentieth century legal theory was dominated by various versions of legal positivism, or positivism-inspired approaches, both in the relatively disciplined Austin-Hart tradition of analytic jurisprudence and in the more eclectic Holmes-realist tradition. Two notable challenges to this dominant focus arose in the decades circling the turn of the new century. One explicitly embraced its natural-law heritage, the other self-identified more with positivism; yet, both wove together features of historical and contemporary natural-law and positivist theories of law while resisting dominant positivist, or more accurately analytic, methodology. In doing so, they highlighted the strengths and weaknesses of the century’s contributions to jurisprudence and effaced the differences between the two traditional rival approaches to understanding the nature of law. In this chapter, we will explore the theories of John Finnis and Jeremy Waldron, taking them as representatives of jurisprudential thinking in a new key at the end of the old century and the early years of the new one.
Moral Foundations
Oxford University Press eBooks, Jan 30, 2023
Law's Rule
Oxford University Press eBooks, Nov 17, 2022
Judicature, 2024
“An ‘Almost Sacred Responsibility’: The Rule of Law in Times of Peril.” Published in Judicature (... more “An ‘Almost Sacred Responsibility’: The Rule of Law in Times of Peril.” Published in Judicature (107 no. 3—2024) Judicature - Vol. 107 No. 3 (2024). The material in this short article was first presented in a lecture for the Bolch Judicial Institute, Duke University Law School, June 16, 2023. The essay sketches key ideas that are set out in detail in Gerald J. Postema, Law’s Rule: The Nature, Value, and Viability of the Rule of Law (Oxford, 2022). It briefly articulates the core principles of the rule-of-law ideal, its moral foundations, key institutions in which it is typically realized, and signal threats to which it is vulnerable.
Utilitarian Positivism
Oxford University Press eBooks, Jul 25, 2019
Professor Hart claims that Bentham's utilitarianism at times gets in the way of his analytica... more Professor Hart claims that Bentham's utilitarianism at times gets in the way of his analytical vision. This chapter defends Bentham against this criticism which rests on two mistakes. First, it seriously misunderstands Bentham's theoretical motivations; second, it rests on a mistaken view of the jurisprudential enterprise generally. It is argued that Bentham's reliance on normative considerations in his criticism of Common Law theory, and his argument for his positivist theory of law, would not be regarded by him as a mistake, but rather as an essential part of the programme he set for himself at the outset of his career. This programme is not incoherent, but in fact rests on a more plausible understanding of the jurisprudential enterprise than that inherited from Austin and Analytical Jurisprudence.
Legal Positivism: Early Foundations
Social Science Research Network, 2011
Legal positivism is a vital and controversial approach to central questions of philosophical juri... more Legal positivism is a vital and controversial approach to central questions of philosophical jurisprudence. Not only are its core theses contested, but claims about what its core theses are and what it stands for have been hotly disputed in recent years. This essay offers some perspective on these debates by looking to the history of legal theory from which contemporary positivist jurisprudence has emerged. It does not take any contemporary formulation of the doctrine as canonical, since most such formulations are contested. Rather than seeking out full-fledged, card-carrying positivist theories in the history of jurisprudence to interrogate, this essay explores the articulation and development of a set of themes which arguably have attracted at least some major positivist legal theorists. The stage is set for understanding Hart’s neo-positivist theory of law, and that of more recent philosophers working in its shadow, by locating their work in the context of positivist themes and arguments that have developed over the long history of philosophical reflection about the nature of law. This essay was prepared for the forthcoming Routledge Companion to Philosophy of Law, edited by Andrei Marmor.
Nature as first custom: Hayek on the evolution of social rules
Edward Elgar Publishing eBooks, Dec 29, 2017
Humana Press eBooks, 1983
Professor Postema argues for a new conception of professional ethics in wlhich lawyers must ackno... more Professor Postema argues for a new conception of professional ethics in wlhich lawyers must acknowledge personal responsibility for the consequences of their professional conduct. He suggests that a new code of professional responsibility is required because the current Code allows lawyers to ignore the social and moral costs of their actions, and do as professionals what they would not do as indiciduals. Lawyers, like other professionals, acknowledge gravely that they shoulder special responsibilities, and believe that they should conform to "higher" ethical standards than laypersons. 2 Yet, lawyers also claim special warrant for engaging in some activities which, were they performed by others, would be likely to draw moral censure. 3 Skeptical of this claim to special license, Macaulav asked "'[w]hether it be right that a man should, with a wig on his head, and a band round his neck, do for a guinea what, without these appendages, he would think it wicked and infamous to do for an empire."1 4 This conflict may trouble the layperson, but for the lawyer who must come to grips with his professional responsibilities it is especially problematic. Montaigne offered one solution, the complete separation of personal and professional lives. "There's no reason why a lawyer ... should not recognize the knavery that is part of his vocation," he insisted. "An honest man is not responsible for the vices or the stupidity of his calling." 5 The key to maintaining both professional *Associate Professor of Philosophy, University of North Carolina at Chapel Hill. A.B., Imaged with the Permission of N.Y.U. Law Review HeinOnline-55 N.Y.U. L. Rev. 63 1980 7 See M. Freedman, Lawyers" Ethics in an Adversary System 27-42 (1975). 8 See Code, supra note 2, Canon 4, especially EC 4-1, EC 4-5, DR 4-101(A). DR 4-101(B). DR 4-101(C)(3). 9 See id. Canon 7, especially EC 7-27, DR 7-102(A)(4). (5). DR 7-IO2tBhlI). Also see ABA Project on Standards Relating to the Prosecution Function and the Defense Function § 7.7 (Approved Draft 1971). 1o I borrow this term from Wasserstrom, Lawyers as Professionals: Some Moral Issues. 5
Fidelity, Accountability and Trust
Hart Publishing eBooks, 2020
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Papers by Gerald J . Postema