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Link Roundup, More on Kahn

August 30th, 2011

More on Paul Kahn's Political Theology from The Immanent Frame.

Link Roundup, The Flight of the Secular Paradigm

August 19th, 2011

Steven Douglas Smith (University of San Diego School of Law) has posted The Plight of the Secular Paradigm to SSRN. From the abstract:
    For many it has been axiomatic that liberal democratic governments and the laws they impose must be “secular”; this assumption pervades both constitutional law and much political theory. But there are indications that this secular “paradigm of legitimacy” is losing its grip; thus, while urging a rehabilitation of secularism, Rajeev Bhargava suggests that “[o]nly someone with blinkered vision would deny the crisis of secularism.” This essay considers that crisis.

Link Roundup, Human Rights and Jewish Law

August 17th, 2011

David Wermuth's article “Human Rights in Jewish Law: Contemporary Juristic and Rabbinic Conceptions,” in University of Pennsylvania Journal of International Law 32:4, has been posted to the journal's website. (via Menachem Mendel)

Link Roundup, Critical Jewish Studies

August 12th, 2011

Does Critical Race Theory speak to Jewish Studies?

Link Roundup, Imagining Justice

August 11th, 2011

Robin L. West (Georgetown University Law Center) has posted  Re-Imagining Justice to SSRN. From the abstract:

Justice – and more particularly legal justice – is a badly under-theorized topic in jurisprudence; perhaps surprisingly, there is little written on it. The paucity of writing of course has a history. It can be traced to the turn of the last century – formative years of legal pedagogy and legal curriculum – when legal formalists and legal realists, who disagreed on virtually everything else regarding law, oddly enough agreed on the need to sever law from moral philosophy and more generally from high culture...Holmes and Langdellian skepticism notwithstanding, one can quite easily discern a conventional, and largely uncriticized, turn-of-the-century understanding of legal justice, inside the academy and the profession. It finds oratorical expression in law day and graduation day speeches, in the major unspoken premises of countless conventional legal arguments, and in some, although again not much, jurisprudential scholarship. That conception – call it the dominant or conventional conception-I will argue below, is seriously flawed. More specifically, I want to suggest that it is seriously flawed in a way that directly and negatively affects feminist and progressive efforts at achieving political reform. Feminists and progressives need to take up the task of criticizing our conventional understanding of legal justice. More importantly, we need to take up the task of crafting alternatives.

Link Roundup, Legal Fictions

August 8th, 2011

Frederick Schauer (University of Virginia School of Law) has posted Legal Fictions Revisited to SSRN. From the abstract:
    There was a time when the topic of legal fictions engaged many of the most important thinkers about law, including Jeremy Bentham, Morris Cohen, John Chipman Gray, Jerome Frank, Lon Fuller, Rudolf von Ihering, Hans Kelsen, Henry Sumner Maine, Alf Ross, and Pierre de Tourtoulon, among many others. But that time has passed, and these days “legal fiction” has become little more than a loosely used all-purpose term of legal criticism. This change is unfortunate, however, because real legal fictions still exist and are still important. Even more significantly, however, understanding legal fictions helps us to understand legal presumptions, and, even more broadly, provides a valuable window into understanding legal truth and legal language. This paper, prepared for the Project on Truth and Law of the Instituto Tecnológico Autónomo de México (ITAM), explores these issues, recapturing some of the historical thinking about legal fictions, distinguishing true legal fictions from the notion of a fiction in Kelsenian legal philosophy, deflating the notion that legal presumptions are legal fictions, and examining the relationship among true legal fictions, legal truth, and legal language.

Symposium Announcement

August 5th, 2011

The 2011 Journal of Law and Religion Fall Symposium this year will take place at Hamline University on September 23, 2011. The theme of this year's symposium is "When Faith and Law Collide". For more information, see here.

Link Roundup, Texts of Constitutions

August 4th, 2011

What role does the text play in Constitutions and other foundational documents?

Link Roundup, The Meaning of Killing

August 2nd, 2011

Guyora Binder (University of Buffalo School of Law) has posted The Meaning of Killing to SSRN. From the abstract:

The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the prosecution must prove she committed an act causing the death of another, accompanied by a culpable mental state. The law conceived homicide very differently in seventeenth-and eighteenth-century England: a killing required an act culturally recognizable as a violent assault. By “rethinking” killing as a kind of act rather than a result, this paper explains the transformation of homicide from unexcused killing to culpable causing.

Link Roundup, Language in the Law

August 1st, 2011

The Legal Theory Bookworm recommends Philosophical Foundations of Language in the Law.