Category: Justice

Locke and the Right to (Acquire) Property: On the Philosophical Basis of Progressive Liberalism

By: Richard Oxenberg

I. Introduction

Do the wealthy pay their fair share in taxes? How do we determine this “fair share”? Does the government have the right to tax some in order to provide services for others? What is the basis of this right? Is redistributive taxation a form of theft, as some on the political right claim, or might it indeed be mandated by the fundamental principles upon which a free society is founded? These are some of the questions that are up front and center for us in this political year.

The purpose of the following essay is to explore the philosophical basis for answering such questions. In particular, I wish to  examine the philosophical underpinnings of what might be called “progressive liberalism,” by showing its derivation from the basic principles of classical liberalism – especially as these are developed by John Locke, whose theory of natural law and natural rights was instrumental in providing the ethical framework for the U.S. Declaration of Independence and Constitution.  I argue that a careful analysis of the right to property as developed by Locke shows that this right is neither absolute nor unlimited. Indeed, analysis shows that, considered in the light of modern capitalist society, to honor this right will demand a fairly robust and ongoing program of progressive taxation, aid to the poor, and social programs sufficient to bring the distribution of property into accord with the “difference principle” articulated by John Rawls. This principle implies that a just economic system must be such as to garner the freely proffered consent of its least advantaged members.

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Georgetown and Slavery: Catholic Redemption in Contemporary Political Time

By: Justin R. Harbour, ALM

Georgetown University is currently engaged in an attempt to research, understand, and repair its role in the perpetuation of slavery in 19th century America. Georgetown University is not the first American university to undertake such an uncomfortable and disheartening reflection. Some of these institutions preceding Georgetown, Harvard and Brown University included, arrived at such a reflective moment through a natural desire to confront their relationship to this most sordid institution of American history. Others have been delivered to this moment through student demands (Yale, Princeton, and Oxford, for example). Georgetown’s deliverance is more of the former than the latter. As MIT historian of slavery Craig Steven Wilder recently observed to the New York Times, Georgetown’s attempt at reconciliation “recognize[s] the humanity of the problem they’re dealing with, [and are treating] it as more than a public relations problem.”  Yet the fact that Georgetown has gone further than any of its peers with respect to research and suggestions for repairs should not be surprising. In the foregoing I will argue that Georgetown’s reconciliation with its relationship to slavery today is the result of a historical development of Catholic Jesuits at a unique place in historical time that makes their contemporary institutions of higher learning an obvious and predictable introspective exemplar amongst its secular peers, and one that should be celebrated.

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Liberal Values in Market Society

By: Jeremy Kingston Cynamon

Much of political philosophy concerns itself with devising a priori systems (derived purely from theory) for organizing society. However, in doing so it tends to overlook many extant structures – particularly those of the economic sphere. In this piece I examine what it is that these a priori systems overlook, as well as the ways that the existing structures alter the institutions haphazardly placed on top of them. I devote the bulk of my attention to the frequent attempts made to overlay liberal values into our market society.

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Judge Posner on Meta-Ethics and Rational vs. Nonrational Argumentation

By:Jeremy Kingston Cynamon

Moral theory is like a system of mathematics that has never gotten beyond addition.R. Posner

Introduction

In his book, Problematics of Moral and Legal Theory, Judge Richard Posner offers a serious critique of the professionalization of moral philosophy that has gone largely ignored by that social milieu. More broadly, his meta-ethical views explaining the nature of morality, which I will reconstruct in this piece, are quite incisive. I generally agree with Posner’s skepticism towards moral realism, and will not attempt to problematize his arguments in this regard. However, in his attempt to delineate different types of moralists (“moral entrepreneurs” from “academic moralists”) he draws some dubious distinctions.

Particularly concerning is his distinction between rational and nonrational argumentation.[1] In my view, it is political rather than philosophical; a sort of social artifact without internal logic. There is, of course, such a thing as a bad argument, but this is not equivalent to a nonrational argument – at least in Posner’s schema, and in academic parlance more generally. Rationality/Nonrationality can be a marginally useful distinction of style, but I argue that it is often misused to track content and thereby unreflectively weaken the normative weight of radical arguments.

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Scalia and the Rule of Law

Howl of the Day: Feb 22, 2016

“The law,” wrote Aristotle in his Politics, “is reason unaffected by desire”.

This view is complicated by Aristotle himself, particularly in his treatment of legislators, those who make the law, and foundings, when laws are born. But despite that, the view so expressed does not lose much of its basic persuasive impact, nor any of its practical importance. The difference between any regime and its degenerate form is often to be found in whether or not the law is regarded therein as an expression of passionless reason, and respected accordingly.

Perhaps no recent justice of the American Supreme Court was as concerned with this idea as the late Antonin Scalia. There have been and will, of course, continue to be questions about whether Scalia understood the issue sufficiently well, and whether he bore out his own view of the matter consistently in his actual judgements, and so on. But there can be little dispute that he regarded the issue as a central one and that he compelled others, friends and foes, to do the same.

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The United States Supreme Court and Same-Sex Marriages: Did The Court Miss An Opportunity For Something Greater?

By: Amar Khoday

Let’s give credit where credit is due. The United States Supreme Court did a tremendous thing for marriage equality in Obergefell v. Hodges.[1] It struck down state laws prohibiting same-sex marriage. In the words of United States federal appellate judge and legal scholar Richard A. Posner: “Prohibiting gay marriage is discrimination.”[2] The decision culminates years of litigation on the issue.

While I am delighted by the outcome of the decision, I am nevertheless going to be a bit of a downer here. Obergefell didn’t go far enough. How so?

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The Frankenstein File

By: Kenneth Smookler

The following is from a draft of a forthcoming book, with the working title Farr & Beyond: Lawyers for the Otherworldly.

Excerpts from the files of the law firm which is prepared to act for the inhabitants of fantastical lands and what may or may not be imagined times and places.


Judge’s ruling on motion for summary dismissal

This is a motion which has been brought by Dr. Frankenstein for summary dismissal of the action against him by the plaintiff, currently known as John Doe.

The grounds alleged by the defendant to be sufficient for the dismissal of this action are as follows together with my reasons for dismissal:

  1. The plaintiff has no name and no place of residence and, therefore, cannot be held responsible for costs.

The plaintiff, having been alive only 23 months is represented by the Official Guardian and therefore would not have been responsible for costs, in any case.

  1. The plaintiff, having been created by Dr. Frankenstein, is not a natural person and therefore has no standing in this court.

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