by Chris Bertram on October 9, 2003
Via “Larry Solum”:http://www.lsolum.blogspot.com/2003_10_01_lsolum_archive.html#106566263824779405 , I see Ronald Dworkin’s “Rights and Terror”:http://www.law.nyu.edu/clppt/program2003/readings/dworkin.pdf (pdf). Dworkin provides both a useful catalogue of the Bush administration’s restrictions on the rights of both citizens and non-citizens of the US since September 11th. He concedes that many of those detained fail to fit into the models provided either by the traditional laws of war or the criminal law. It is incumbent on us, therefore, to think through what justice requires in this new situation. The Bush administration, though, has not done so.
bq. The Bush administration and their supporters say that a new structure, which they call a new balance, is necessary. But they propose not a new structure but none at all: they assume the privileges of both models and the constraints of neither.
by Chris Bertram on October 6, 2003
I tuned into the BBC’s Panorama last night, which consisted of an investigation into Camp Delta at Guantanamo and also the conditions under which detainees are held in Afghanistan itself. Whilst Panorama can be a sensationalist programme with a definite agenda, the specific allegations made can’t easily be wished away or dismissed as biased or malicious. Many of these are familiar to people, but I was sufficiently engaged by the broadcast to want to rehearse them here. I’m going from my memory of the programme, so I may have missed some details. The points raised included:
bq. That numbers of people have been detained in Guantanamo after being denounced by their enemies and business rivals as a means of settling petty scores. (When the baselessness of the charges against them became clear, they were simply dumped back in Afghanistan to pick up their lives as best they could.)
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by Chris Bertram on July 30, 2003
In a comment to one of Brian’s earlier posts on ethical naturalism, I mentioned that Jerry Cohen’s argument that ethics must (ultimately) depend on fact-insensitive principles seemed to me to threaten the naturalist position (at least as Brian had formulated it). Larry Solum – who started this whole conversation – now has an extensive discussion of Cohen’s view (scroll down) as expressed in the latest Philosophy and Public Affairs. Larry thinks that even if Cohen is right, an Aristotelian naturalism might survive. I’m not sure what to think about that yet. One thing worth noticing about Cohen’s view is that even though most of the discussion is about ethics, it applies to normative principles quite generally. This being so, it ought to apply to such principles in other domains (including epistemology and the theory of rational action) and that if it threatens naturalism in ethics it also threatens naturalistic programmes in those areas.
by Chris Bertram on July 9, 2003
Larry Solum’s Legal Theory Blog is one of the jewels of the blogosphere. One of his most recent posts is a discussion of the tangled notion of “legitimate state interests” in the US legal system. Here’s his specification of the project:
What makes some state interests “legitimate” and others “illegitimate”? That thorny question is the topic of this post. Here is my strategy. We shall begin with a bit of history, discussing the historical origins of the phrase “legitimate state interest” in jurisprudence from the turn of the century, the New Deal, and the modern era. Next, we shall take a closer look at Lawrence, investigating in depth the idea that the state lacks a legitimate interest in promoting morality. Then, we shall back up and interrogate the concept of “legitimacy.” In the end, we will ask the question: does the notion of a “legitimate state interest” do any useful work in constitutional law?