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3) Moral combat
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This book explores the thesis that legal roles force people to engage in moral combat, an idea that is implicit in the assumption that citizens may be morally required to disobey unjust laws while judges may be morally required to punish citizens for civil disobedience, Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. In the end, Hurd shows that our best moral theory is one that never makes one...
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"Conundrums, puzzles, and perversities: these are Leo Katz's stock-in-trade, and in Why the Law Is So Perverse, he focuses on four fundamental features of our legal system, all of which seem to not make sense on some level and to demand explanation. First, legal decisions are essentially made in an either/or fashion--guilty or not guilty, liable or not liable, either it's a contract or it's not--but reality is rarely as clear-cut. Why aren't there...
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" Thomson says that the question what it is to have a right precedes the question which rights we have, and she therefore begins by asking why our having rights is a morally significant fact about us. She argues that a person's having a right is reducible to a complex moral constraint: central to that constraint is that, other things being equal, the right ought to be accorded. Thomson asks what those other things are that may or may not be equal,...
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We are living in a time when the soul is being drained from the very social institutions that are supposed to be preserving life and values. One of these institutions is the law. But this once respected profession has become sick in its soul. The problems in our legal system, our negative attitudes toward lawyers, and the skyrocketing number of lawsuits are symptomatic of a deeper malaise in our society. We fear anarchy and individualism, so we push...
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"The issue of public morality, so often at the center of heated debates about pornography, narcotics, public indecency, violent entertainments, "family values," et cetera, is at once a continuing reality and a persistent dilemma in our liberal society. With Public Morality and Liberal Society, Harry M. Clor makes an important contribution to this perennial and intensely debated theme by considering how public morality can be justified in theory and...
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In Practices and Principles, Mark Tunick takes up the debate between universalists and relativists, and, in political philosophy, between communitarians and liberals, each of which has roots in an earlier debate between Kant and Hegel.
Tunick focuses on three case studies: promises, contract law, and the Fourth Amendment issue of privacy. In his analysis, he rejects both uncritical deference to social practice and draconian adherence to principles...
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"The debate over religious lawmaking pits respect for religious pluralism against moral identity. Liberal theorists contend that religious lawmaking is generally suspect in a morally and religiously diverse polity like the United States, while communitarian theorists argue that lawmakers cannot, and should not, be expected to suppress their religious commitments in their public policy making." "Looking carefully at both sides of this ongoing debate,...
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Ambitious legal thinkers have become mesmerized by moral philosophy, believing that great figures in the philosophical tradition hold the keys to understanding and improving law and justice and even to resolving the most contentious issues of constitutional law. They are wrong, contends Richard Posner in this book. Posner characterizes the current preoccupation with moral and constitutional theory as the latest form of legal mystification - an evasion...
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When Americans become outraged with behavior considered immoral or unethical, a typical response is to call on state legislatures or Congress to pass legislation outlawing it. Can government impose morality on its people by banning negative behavior or mandating positive behavior? History suggests that such efforts, though well-intentioned in many cases, are often ineffective. This program examines the successes and failures of law as a source of...
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"Criminal Justice and Moral Issues" begins by addressing two questions: (1) What kinds of problems can the law solve? and (2) What kinds of problems does the law create? Using these questions as starting points, Robert F. Meier and Gilbert Geis evenhandedly explore the role and function of law relating to six major issues that often divide Americans today: prostitution, drug use, homosexuality, abortion, pornography, and gambling. Statutes and public...
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