Suchergebnisse

While Dworkin views law as the embodiment of moral principles, the sources of those principles that he identifies do not supply the justification of force he ascribes to them. In this article I propose that judges interpret justice from what I call the social forms of society. I call this method justice as integrity and propose it as the foundation of law as integrity. By showing how social meanings are necessarily part of our understanding of social and natural phenomena, I hope to show that Dworkin's political theory, and hence his legal theory, are tenable only upon a constructivist foundation of justice closer to Michael Walzer's than his own. While this methodology better explains the moral foundations of law, I reject the metaphysical implications that both he and Dworkin ascribe to it. Constructivism does not imply ethical relativism nor does it provide any moral or epistemological barriers to criticism of social practice in one's own society or elsewhere. I hope to make Dworkin's constitutional theory more viable by reconceiving the objectivist pedigree of social and empirical meanings. Social meanings can create clear, objective principles that apply across a pluralistic community and permit judges to interpret justice as insiders of the social forms of their community.

Citizens United has stimulated a cottage industry of legal scholarship on corruption. A prominent stream of this literature is self-consciously atheoretical and suggests that the current state of corruption jurisprudence suffers from a misconceived reliance on liberal political theories and a rejection of the public good. We argue that it is impossible to understand specific acts of corruption without a political theory explaining why such actions are wrong. We show that the current jurisprudence relies on a mistaken intellectual history of the public good and a political theory of American constitutionalism that commodifies citizenship and treats political participation as a market good. Pace Teachout, we cannot draw the bright lines many legal scholars desire without a better political theory of the primary goods we want to protect.

Do government officials, who have taken an affirmative oath to uphold the constitution, have any legitimate claim to disobey the law? We argue that they do. Indeed, the nature of law itself requires officials to have some mechanism to enforce the secondary rules or if one prefers, the associative obligations, upon which their authority is based. When institutional structures and official behavior makes it impossible for officials to subordinate government activity to the rule of law, then other officials may be excused from legal constraints for the limited purpose of ensuring accountability. We use arguments from legal, constitutional and political theory to illustrate this narrow excuse.