When I was younger, I had this conviction that the law was a noble calling allied with rationality and justice. The more I learn about it, and see of it, and deal with it, the more it seems a grotesque parody or subversion of those things. Necessary? Yes. Noble? Not really. Often, it just seems like a game played by the rich, educated, and powerful, intended to rationalize whatever needs to be rationalized so that the world stays the way it is.
In a previous post on H.L.A. Hart’s Concept of Law, I had taken issue with the idea, expressed by Hart, that the criminal code consists of “commands” or “imperatives.” I don’t think it does, and regard both Hart’s discussion and much discussion based on it, as fundamentally confused as a result. This was the topic of a Zoom conversation we had last Sunday, and then an email missive I sent out and promised to post. I was originally going to make it a comment on my last post, but it’s too long, so I’ve made it a post of its own. I’ve cleaned it up slightly, but not (I think) in ways that anticipate the criticisms that were made of it in the email discussion. Continue reading
As I mentioned in the preceding post, the MTSP discussion has moved from discussing George Sher’s Desert (my choice) to HLA Hart’s The Concept of Law (Roderick’s). Since I’m not even close to done summarizing and commenting on Sher, I’m obviously not going to commit to writing a series of essays on Hart. But I don’t want our discussions to disappear into the Zoom void, either, so I thought I’d just mention some of the themes of the discussion, using this post as a placeholder for any further discussion that might take place (whether among the Zoom discussants or anyone else who wants to join in).
At Roderick’s suggestion, we read the first two chapters of The Concept of Law–the first on “persistent questions” that arise in defining the concept of “law,” the second on “laws, commands, and orders.” Unfortunately, each one of us had a different edition of the book, which made “citation” difficult, but for this post, I’ll be using the Second Edition. As I see it, three basic issues came up. Continue reading
I’m not a big booster of my undergraduate alma mater, Princeton, or a big fan of its current president, Christopher Eisgruber. But when a self-proclaimed “libertarian” academic gleefully defends an absurdly unwarranted federal investigation into the institution, relying on transparently idiotic arguments, one reaches a point of discursive futility: this is not a person worth arguing with, or even all that much worth spitting at.
No one with Brennan’s credentials can be stupid enough to believe the bullshit arguments he’s trundling out at this point. As a friend of mine pointed out, Brennan’s blog posts are not meant to be taken seriously. They’re just the efforts of a hostile well-poisoner working off his animosities in public in the confident belief that he can say anything about anyone with impunity. All I have left to say is: feel free, dude–and feel free to fuck yourself while you’re at it. Continue reading
Whenever I have to spend a lot of time dealing with lawyers, I find myself thinking about The Merchant of Venice, the best guide to the law (and to lawyers) ever written. Of course, for as long as I’ve been reading it, I’ve encountered interpreters who sing the praises of Portia, the pseudo-lawyer who decides the case at the climax of the play. I guess my attitude toward Portia is a lot like Jan Brady’s attitude toward her older sister Marcia, as depicted in this, the climactic scene in one of the major episodes of the Brady Bunch epic.
Consider the following social phenomena:
- Public denunciation or accusation
- Termination (in the context of employment)
- Regulatory proceedings (e.g., audits, sanctions, and the like)
- Arrest (in the context of criminal proceedings)
I’ve organized them in ascending order of intensity for the person on the receiving end. Continue reading
Back on July 25th, I took issue with Jason Brennan’s claim that
…in general, in legal contracts, even when there is language to the contrary, parties do not acquire the right to unilaterally revise the conditions.
This claim, I argued, is close to the reverse of the truth. Most employment in the US is employment-at-will. In at-will employment arrangements, employers unquestionably do have the right (both de facto and de jure) “to unilaterally revise the conditions” of employment. They often conceal this by having their employees sign what look like (and are called) “contracts.” But the “contract” in question will typically contain language to the effect that the employment arrangement is at-will, implying that the terms are revisable at will.* Continue reading
In a whiny blog post at 200 Proof Liberals addressed to his provost, Jason Brennan claims that you can’t enforce a contract which gives one side unilateral and unlimited power to change the terms of the contract. The context is a “compact” that Georgetown’s administration has imposed on students, faculty, and staff regarding the spread of COVID-19. Continue reading
I just saw some guy walking two beautiful golden retrievers down Witherspoon Street in Princeton, New Jersey. He crossed the street without really looking where he was going, then nearly collided with a car turning into the intersection. I repeat for the nth time that if American crosswalks were designed like the crosswalks of Barcelona, none of this would ever have happened. But they aren’t, and no one ever listens to my pro-Barcelona urban planning rants anyway.* Continue reading
Friday was the second anniversary of the tragic Parkland shooting. The shooting was remembered in an appropriate-enough way in the media, except for one (to me) conspicuous thing: the continued, thoughtless, fact-free demonization of Scot Peterson, the School Resource Officer universally blamed for not entering the building where the shooting took place. Almost without exception, journalism about Parkland continues to take for granted the unexamined dogmas that Peterson “failed” to enter Building 12 and “failed” to confront the shooter, that he knew where the shooter was but deliberately hid from danger, and that his malfeasance goes beyond cowardice to legally actionable neglect, and beyond civil wrong to outright criminality. Continue reading