LSA Retro-Recap Days 2-3: Leisure, Law & Econ, and Liberalism
Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on!I saw a number of interesting papers on Days 2 and 3. Here were three that stood out for their VOSFOTWOAS.
Julie Rose, The Coordination of Free Time: A New Defense of Old Blue Laws
Rose, a postdoctoral fellow at Brown’s Political Theory Project, presented a philosophical analysis of Sunday labor restrictions. Rose argues that some of the traditional justifications for these “blue laws” are incompatible with basic principles of political liberalism. However, Rose contends, arguments for blue laws based on the need to coordinate free time have unappreciated merit. Rose’s argument has three premises:
P1: citizens have a basic right to leisure;
P2: citizens have a legitimate claim to social resources necessary for the exercise of their formal liberties (which she calls the “effective freedoms principle”);
P3: some form of coordination is necessary for the effective exercise of the right to leisure;
Conclusion: Sunday blue laws can be justified as a way of coordinating citizens’ individual rights to leisure, thereby ensuring their effective exercise.
P1 might strike you as controversial. Rose defends it at length in several forthcoming articles, as well as a book-length manuscript that I will be very interested to read. My initial concerns lay more with P2, which might be broader than some liberals (like John Rawls) would allow. However, Rose had convincing responses to my concerns in discussions afterward.
For me, Rose’s presentation offered the best kind of experience at an academic conference. I began the presentation somewhat skeptical. As Rose presented her analysis and confronted potential objections in their best form, my skepticism morphed into enthusiasm. I am very interested to see how Rose develops this paper and her book project, which bear on a variety of issues in con law theory and political philosophy more generally.
James Hackney, Guido Calabresi and the Construction of Contemporary American Legal Theory
Hackney’s paper on Calabresi is orthogonal to his new book Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory. This paper (which is forthcoming in Law and Contemporary Problems) provides a brief but fascinating intellectual history of law and economics in the 20th century.
Hackney locates methodological debates between Calabresi and Richard Posner’s early work within a broader theoretical debate about the autonomy of law from politics. For Hackney, Calabresi’s work in The Cost of Accidents retains the influence of legal realists, and as such implicitly rejects the possibility of a science of legal analysis. The most prominent example of this debate is whether economic analysis of law should be concerned with issues of distribution (Calabresi thought yes, the early Posner thought no).
Hackney is convincing in his argument that there are much deeper questions at stake in this seemingly parochial debate. These issues include the requirements of good theorizing and the interrelation of theoretical and empirical projects. They are relevant both for those of us who are interested in the history of a prominent intellectual movement and those who of us who will practice (or respond to) it going forward.
Vincent Chiao, Criminalization and Liberalism
Chiao’s paper challenges some recent defenses of criminalizing of hate speech as a way of exploring broader issues about the kinds of conduct that a liberal state may legitimately criminalize. For Chiao, the political commitment to non-comparative version of egalitarianism requires protecting and promoting basic first-order interests (like the development of capabilities or achievement of welfare). Many arguments for criminalizing hate speech invoke second-order interests (which involve the public affirmation of these first-order interests) as a basis for criminalizing hate speech. These arguments typically proceed disjunctively: hate speech warrants criminalization because it sets back the well-being or capacities of its targets; but even if it didn’t do this, hate speech would still warrant criminalization because it sets back the second-order interests of its targets.
Chiao objects that the second part of this argument is inconsistent with political liberalism. Although Chiao might not put things this way, his argument can be seen as a version of John Stuart Mill’s harm principle: the protection of first-order interests is necessary for criminalizing (or otherwise bringing the coercive powers of the state to regulate) conduct. If conduct implicates only second-order interests, then it should not be regulated through the coercive powers of the state (although it might be regulated in some other way). Chiao’s argument for this last point is too complex for me to convey here, but I found it highly intriguing and am very interested to see how he ultimately develops it.
Chiao’s paper (and the larger project out of which it arises) aims to recast questions of criminalization and punishment in terms of political philosophy. For my money, this is where the action is in criminal law theory.