Brian E. Butler
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226474502
- eISBN:
- 9780226474649
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226474649.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from ...
More
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.Less
This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.
Brian G. Slocum (ed.)
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780226445021
- eISBN:
- 9780226445168
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226445168.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, ...
More
Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential? To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.Less
Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential? To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.
Against Prediction
An American Travesty
The Atlantic Divide in Antitrust
Changing Lives
A Community Built on Words
Confident Pluralism
The Constitution in Congress
Constitutional Conscience
Corporate Bodies and Guilty Minds
