This chapter contains sections titled: Modern Legal Theory and the Impact of Realism Policy Science Legal Process References.

Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...) analogy are discussed in the introductory material. Electronic resources for conducting research on analogy are listed as well. (shrink)

The problem of “dirty hands” has become an important term, indeed one of the most important terms of reference, in contemporary academic scholarship on the issue of torture. The aim of this essay is to offer a better understanding of this problem. Firstly, it is argued that the problem of “dirty hands” can play neither within rule-utilitarianism nor within absolutism. Still, however, the problem of “dirty hands” represents an acute, seemingly irresolvable, conflict within morality, with the moral agent understood, following (...) Nagel, as necessarily holding mixed, absolutist-consequentialist moral intuitions, pulling in opposite directions. Secondly, a distinction is drawn between real situations of “dirty hands,” and other conflictual scenarios, which are commonly, but unjustifiably placed under the metaphorical title of “dirty hands.” Finally, it is suggested - utilizing Nagel’s own ideas, as developed in his later work, and Sen’s notion of evaluator relativity—that the moral “blind alley” manifested in the problem of “dirty hands” may not be totally blind after all, at least from the situated agent’s own internal point of view (as opposed to that of an external observer trying to put herself in the agent’s position by way of moral simulation). Thus, contrary to Walzer’s approach, it is possible for a person (politician) acting in a situation of “dirty hands,” not to believe herself to be guilty, but still be a moral person. (shrink)

This article demonstrates that our more sophisticated theories of law lead us to a point where we are no longer able to distinguish law from culture, or society, or the market, or politics or anything of the sort. Not only are the various terms inextricably intertwined (something that other thinkers have observed) but we are no longer in a position to articulate any relations between these various terms at all. It is with this latter realization that the dedifferentiation problem kicks (...) in. Because the various terms cannot be disentangled, we find ourselves in the odd position where there is nothing of any positive character to be said about their relations. Each is already the other and, thus, they can have no relation. This is rather bad news for the ways in which we have traditionally conceived theories of law—indeed any theory that gets off the ground by distinguishing law from a discrete something else (which, on first glance, would seem to include all legal theory). (shrink)

In this paper I first aim to identify, from a perspective mindful of both analytic and Continental traditions, the central normative issues at stake in the various debates concerning commodification in law. Although there now exists a wealth of thoughtful literature in this area, I often find myself disoriented within the webs of moral criteria used to analyze the increasingly ubiquitous practice of converting legal goods into monetary values. I therefore attempt to distinguish and organize these often conflated conceptual distinctions (...) across several registers of moral analysis. Second, I formulate what I consider the most illuminating questions regarding the criteria used to evaluate commodification in law. Critiques of commodification in law face what I call problems of ideology, intractability, and hyperbole, and identifying these issues helps to explain the momentum of the law and economics movement. (shrink)

Various contemporary legal theorists have turned to ‘imagination’ as a keyword in their accounts of law. This turn is fruitfully considered as a potential response to the modern condition diagnosed by Max Weber as ‘disenchantment’. While disenchantment is often seen as a symptom of a post-metaphysical age, it is best understood as the consummation of metaphysics and not its overcoming. Law’s participation in disenchantment is illustrated by way of Holmes’ parable of the dragon in ‘The Path of the Law’, which (...) illustrates the rationalization and demystification of law. Four ideal–typical turns to ‘imagination’ are identified: the theoretical, the progressive, the transformative and the nostalgic. Most of these turns to imagination remain complicit with disenchantment. ‘Imagination’ often appears only to be harnessed in the service of more conventional keywords of legal thought: theoreticians turn to imagination as synthesis to serve as a form of super-reason; progressives turn to imagination as empathy to make law a more effective instrument; transformatives turn to imagination as invention to serve as a form of super-will. By turning to imagination as attunement, nostalgics come closest to accepting a world that is not masterable, i.e. they come closest to accepting an enchantment that is a gift and not the product of our imaginations. Indeed, modern imaginations are themselves symptoms of disenchantment. If Weber’s diagnostic calls for a human response, it cannot be one of overcoming disenchantment by imaginative re-enchantment: it belongs integrally to enchantment to exceed any and all human capacities. (shrink)