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Courts, such as the U.S. Supreme Court, make important decisions about rights by voting, and often the decision is determined by a bare majority. But the principle of majority decision (MD) for courts has not been much reflected on. There is very little scholarly literature on this and only a handful of articles proposing alternatives to MD in the judicial context. So what justifies judges' reliance on MD? In democratic contexts, MD is usually defended on one of three grounds: (i) as a decision-procedure that is efficient; (ii) as a way of reaching the objectively best decision; or (iii) as a way of respecting the principle of political equality. However, it is difficult to see how any of these arguments really explains or justifies MD in the case of judicial decision-making. Regarding (i), other efficient procedures are available: we want to know why this sort of efficiency should be valued. On (ii), epistemic arguments for MD do not work well for the sort of bare majorities that we see in Supreme Court decision-making. And, on (iii), it is hard to rig up an argument based on political equality or political fairness that works for unelected judges as opposed to ordinary citizens or their elected representatives. After reflecting on these possibilities, the Essay concludes that, at the very least, defenders of judicial authority should be more tentative in their denunciations of democratic majoritarianism., ESSAY CONTENTS I. WHY ASK? II. A LACK OF DISCUSSION III. DO WE HAVE TO JUSTIFY THE USE OF MAJORITY DECISION IN COURT? IV. THE MAIN LINES OF JUSTIFICATION FOR [...]

Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that [...]

LEGALITY. By Scott Shapiro. Cambridge: Harvard University Press, 2010. Pp. 472. $39.95. I. COMPARISONS What is law like? What can we compare it with in order to illuminate its character [...]

Lon Fuller, in his response to H.L.A. Hart's 1958 Holmes Lecture and elsewhere, argued that principles of legality—formal principles requiring, for example, that laws be clear, general, and prospective—constitute the "internal morality of law." This Article contends that Hart never offered a clear response. Fuller's claim supposes that observance of the principles of legality is both fundamental to law and inherently moral. In different writings, Hart seems variously to affirm and to deny that legality is a necessary criterion for the existence of law. Likewise, he sometimes suggests and elsewhere scorns the idea that legality has moral significance. This Article proposes that Hart's apparent inconsistency might actually reflect the complexity of the terms. Some degree of legality might be a prerequisite of law, while some failures of legality might not condemn it. Principles of legality might have contingent rather than inherent moral value, might have moral value that is severable from their legal value, or might have both positive and negative moral effect. The Article argues, furthermore, that even the conclusion Hart strains to avoid— that legality inevitably links morality and law—is compatible with Hart's positivism and opens a promising field for positivist jurisprudence. [ABSTRACT FROM AUTHOR]

In recently published memoranda, Justice Department lawyers have suggested that it is not in all circumstances wrong or unlawful to inflict pain in the course of interrogating terrorist suspects. Also, at least one legal scholar has suggested that the United States might institute a system of judicial torture warrants, to permit coercive interrogation in cases where it might yield information that will save lives. The shocking nature of these suggestions forces us to think afresh about the legal prohibition on torture. This Article argues that the prohibition on torture is not just one rule among others, but a legal archetype-a provision which is emblematic of our larger commitment to nonbrutality in the legal system. Characterizing it as an archetype affects how we think about the implications of authorizing torture (or interrogation methods that come close to torture). It affects how we think about issues of definition in regard to torture. And it affects how we think about the absolute character of the legal and moral prohibitions on torture. On this basis, the Article concludes not only that the absolute prohibition on torture should remain in force, but also that any attempt to loosen it (either explicitly or by narrowing the definition of "torture ") would deal a traumatic blow to our legal system and affect our ability to sustain the law's commitment to human dignity and nonbrutality even in areas where torture as such is not involved. [ABSTRACT FROM AUTHOR]

Analyzes the views of philosopher Immanuel Kant on the extent to which disagreement about justice constitutes a problem. Influence of disagreement on politics and law; Discussion on normative positivism; Natures of Kant's association with legal positivism.

This article discusses the internal morality of the practices and institutions of law. Compliance with the principles of the internal morality of law (IML) which include the principles of generality, promulgation, prospectivity, clarity, non-contradiction, practicability, constancy, and congruence between official action and declared rule, is necessary if one is going to achieve anything at all in the government or administration of a state. IML defines conditions for the efficacy of any system rules, Where efficacy means the ability of the system to serve the ultimate end for which the rules are deployed. But it does not follow that the IML principles are instrumentally justified by those ends. The rule of law was leavened by some very careful reflection on the political purposes that might actually be disserved by following the prerequisites of government by rules, the goals that might be better promoted by brushing aside IML. People cannot simply present adherence to the principles of IML as a necessary price to be paid for respecting freedom or for pursuing social goals in an atmosphere of liberty. Freedom may make demands that draw people in the opposite direction. Certainly the law is supposed to command respect and fidelity even among those who do agree with its substance.