Faculty Chapters

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Ius gentium: A Defense of Gentili's Equation of the Law of Nations and the Law of Nature

Jeremy Waldron

This chapter takes up the fundamental question of the place of practice in the theoretical concepts of the law of nations and natural law. It explores the puzzle of how the normative code of natural law, which Gentili and his predecessors believed to be ascertained by human reason, could also be derived from the kind of empirical material concerning practice that Gentili uses to demonstrate that a rule is part of the law of nations. It argues that the confident separation of reason and normativity from empirics and assessments of actual practice in legal theory is misguided, and that Gentili's imbrication of the two sides of this dichotomy is well-grounded. Pure moral thought may be mere ‘untutored nature’, made better by absorbing insights from practice and historical experience. And pure empirical study of practice as the basis for positive law is not sufficient when practice is not uniform: choices must be made about which (if any) set of competing practices is indicative of law, and these choices are made partly through use of criteria of morality and justice, in a kind of reflective equilibrium between theory and practice. Gentili's views on these matters are not formulated with complete clarity or consistency, but his work overall is suggestive of an approach that is illuminating also for contemporary international law.
Legal Pluralism and the Contrast Between Hart's Jurisprudence and Fuller's

Jeremy Waldron

The exchange between Lon Fuller and HLA Hart, published in the Harvard Law Review in 1958, covered a whole array of questions in general jurisprudence. Yet there were one or two issues that were salient then or have become salient in legal theory since 1958 that they barely touched on. One is the topic of legal pluralism, and that is my topic in this chapter. I think it is fair to say that there is nothing whatsoever on this topic in the Hart-Fuller exchange—nor do modern debates about legal pluralism appear to be part of the legacy of the Hart-Fuller debate. So much is this so that some jurists have suggested that the Hart-Fuller debate actually skewed the agenda for jurisprudence in unfortunate ways, which we are only now beginning to correct, and that recent emphasis on legal pluralism is part of that process. However, I have no intention of scolding Hart and Fuller for failing to address legal pluralism in 1958. It would be churlish to do so, given the range of topics they did address. But it is interesting that they neglected this topic, and it tells us something perhaps about blind spots in both their jurisprudence. So in what follows I want to look at various missed opportunities (for addressing this topic) from the positivist perspective that Hart’s work represents and from the various perspectives that Fuller’s work represents—the ‘rule of law’ perspective and the anti-positivist position. I am also going to speculate a little about what Hart’s and Fuller’s attitudes to legal pluralism might be expected to be, in light of the positions they took up in their subsequent work. I suspect that most legal theorists have the following view. They assume that HLA Hart and Lon Fuller would be divided on the question of legal pluralism. They assume that Hart, like other legal positivists, would tend to favour a strongly state-centric view of law, leaving little room for genuine legal pluralism. And they assume that Fuller would be much more sympathetic to legal pluralism, partly on account of his anti-positivist commitments and partly on account of some things he said about customary law and about the diversity of legal systems, not in the 1958 piece but in The Morality of Law and in some of his later writings. I shall try to show that on both sides this view is a little simplistic. I do not mean that Hart was a legal pluralist and Fuller was not. But I mean first that, on the Hart side, we need to distinguish between currents in legal positivism that favour legal pluralism (and there are some) and currents in legal positivism that tend to oppose it; we need to understand how the latter currents are permitted to flow through the distinctive channels of the legal theory that Hart set out in his Holmes Lecture and in The Concept of Law; and we need to understand the various ways in which the former currents are blocked. And I mean secondly, on the Fuller side, that we need to understand the pressures put on the idea of legal pluralism by Fuller’s ‘inner morality of law’ and the ways in which this might militate in favour of a monistic rather than a pluralistic legal/political system.
Questions About the Reasonable Accommodation of Minorities

Jeremy Waldron

The furore following the lecture by the Archbishop of Canterbury in early 2008—where Dr Rowan Williams discussed the prospect of some limited form of Shari’a being introduced into Britain—reminds us that the accommodation of minorities is seldom an uncontroversial or straightforward subject. The UK debate quickly degenerated into a heated and polarized discussion that, with few exceptions, neglected to undertake a constructive analysis of the underlying issues and policy concerns. In this brief essay I hope at least to partly redress that shortcoming by illuminating some key questions that a modern liberal state confronts in legally accommodating the religious and cultural claims of minority groups. The title of this essay refers to the ‘reasonable accommodation of minorities’. I take this to mean accommodation within a modern legal system of the norms and requirements of their culture or religion or of the law associated with their culture or religion or associated elsewhere with a political community of which they and their ancestors were once a part. I shall assume that the accommodations occurs within the framework of a comprehensive system of law in a modern democratic state. Among other things, ‘accommodation’ might include (i) exemptions from generally applicable prohibitions or requirements to permit actions (or omissions) required by minority norms but presently prohibited by general law, or (ii) giving legal effect to transactions (such as certain types of marriage or property transactions) structured and controlled by norms other than those used to structure and control similar transaction in the general system of law. (An example of (ii) might be the introduction and recognition of marriage as defined by Shari’a law within the general framework of British law or Israeli law of the law of Ontario.) I assume that ‘accommodation’ does not include devolution of government, in a sense that would allow a minority community to determine, for example, (iii) the imposition of punishments for crimes that were more severe than, or different in character from, the punishments imposed by the general legal system (amputation for theft, for example). Possibly accommodations of type (i) might have something in common with accommodations of type (iii)—for example, allowing minority groups freedom from constraints on corporal punishment imposed generally on parents. But the idea of devolution and regional autonomy, with different legal systems (what the Archbishop of Canterbury in his Shari’a Lecture called ‘parallel jurisdictions’), is in principle separable from the idea of accommodation within the framework of a single overarching legal system associated—importantly here—with a single state in control of the legitimate means of coercion. So I shall not discuss accommodations of type (iii).
The Image of God: Rights, Reason, and Order

Jeremy Waldron

Imago Dei—the doctrine that men and women are created in the image of God—is enormously attractive for those of us who are open to the idea of religious foundations for human rights. It offers a powerful account of the sanctity of the human person, and it seems to give theological substance to a conviction that informs all foundational thinking about human rights—that there is something about our sheer humanity that commands respect and is to be treated as inviolable, irrespective of or prior to any positive law or social convention. In this chapter I want to do three things. First, I want to survey some of the difficulties that might stand in the way of treating imago Dei as a foundation for human rights. Some of these have to do with the specifically religious character of the doctrine; the fact that this might disqualify the doctrine in the eyes of secular political liberals. But I shall argue that this objection is perhaps less telling than objections that might arise within the tradition of Judeo-Christian thought. We must not assume that a doctrine that seems, at first glance, attractive as a foundation for human rights is actually capable (in light of its specific theological character and the controversies that surround it) of doing the work that a given human rights theorist wants it to do.
Treating Like Cases Alike in the World: The Theoretical Basis of the Demand for Legal Unity

Jeremy Waldron

This volume is concerned with exploring the theoretical and practical consequences of globalization for national highest courts. Many traditional assumptions pertaining to these institutions, for example that national highest courts stand at the apex of a unified and coherent legal order or that national courts have no autonomous role as international or transnational actors, have come under increasing scrutiny over the last few years. The authors of this book—comprising both leading scholars and distinguished judges—explore the various dimensions of this issue and offer novel perspectives on the role of highest courts in an internationalising world. This book is therefore highly recommended to judges and practitioners in national and international courts, academics, parliamentarians and civil servants of national ministries of justice and the interior.
Two Conceptions of Self-Determination

Jeremy Waldron

International law has recently emerged as the subject-matter of an exciting new field of philosophical investigation. The Philosophy of International Law contains 29 cutting-edge essays by leading philosophers and international lawyers, all published here in English for the first time, that address the central philosophical questions about international law. The volume's overarching theme is the moral and political values that should guide the assessment and development of international law and institutions. Some of the essays tackle general topics such as the sources and legitimacy of international law, the nature of international legal adjudication, whether international law can or should aspire to be 'democratic', and the significance of state sovereignty. The other contributions address philosophical problems arising in specific domains of international law, such as human rights law, international economic law, international criminal law, international environmental law, and the laws of war. This volume is the most up-to-date and comprehensive treatment of the philosophy of international law in existence. It is also distinguished by its 'dialogical' methodology: there are two essays on each topic, with the second author engaging with the arguments of the first. It is an invaluable resource for anyone seeking a deeper understanding of the nature and value of international law.
A Note on the Significance of the Trial of Jesus from the Perspective of the Procedural Controversy

Joseph H. H. Weiler

Author of a noted thesis devoted to the legal act in public international law, Jean Paul Jacqué first taught public international law and constitutional law in Strasbourg, while successively serving as dean of the Faculty of Law, Sciences politics and management and president of Robert Schuman University. His scientific interest in the international protection of human rights and in the European Parliament will soon lead him to be associated with the development of important projects within the European Economic Community. The attention he paid to community institutions then led him to take a new course in his career: he was appointed director of the legal service of the Council of the European Union. Placed, by his functions, at the very heart of the daily development of Community law, he continues to carry out sustained academic activity (writing of manuals and numerous articles, conferences, teaching). Thus, Jean Paul Jacqué leads action and reflection simultaneously, skillfully combining his responsibilities within the Council and his critical ability to analyze the legal and political developments of the European Union.
The Accidental Constitution

Joseph H. H. Weiler

The European Union is the most successful supranational organization in history. It has reconciled former enemies, established a single market and a common currency, and reintegrated Central and Eastern Europe into the West. Yet the EU remains unsatisfying to its members and its partners. An economic giant but a political pygmy, it seems hamstrung by bureaucracy and a lack of connection to European publics. In Europe 2030, distinguished authors predict what the European Union will look like twenty years from new. A range of views is presented, foreseeing everything from slower growth and diminished power to actions that would make the EU a more vigorous, influential world play. Contributors include Oksana Antonenko (International Institute for Strategic Studies), José Manuel Durão Barroso (European Commission), José Cutileiro (former secretary general, Western European Union), Joschka Fischer (former minister of foreign affairs, Germany), Charles Grant (Center for European Reform), Andrew Hilton (Centre for the Study of Financial Innovation), Jonathan Laurence (German Marshall Fund, Boston College and Brookings Institution), Rui Chancerelle de Machete (consititutional and administrative attorney), Hubert Védrine (former minister of foreign affairs, France), and Joseph H. H. Weiler (New York University).
Ways Out of the Ghetto

Joseph H. H. Weiler

In the public debate today Christians quickly encounter a "dead end road": Of course, no one should be discriminated against – but is anti-discrimination legislation a good idea? Why does everybody call Christians intolerant, while it much rather seems that it is the Christians positions which are not being tolerated? "Exiting a Dead End Road" provides a "GPS" for Christians in the main questions of public interest in a concise and accessible format. Distinguished experts offer their analysis and solutions to questions such as: What’s Wrong With the West? (Robert George, Bill Saunders), Dealing with Political Correctness (Marguerite Peeters), Comprehending Freedom and Tolerance (Rocco Buttiglione), Ways Out of the Ghetto (Joseph Weiler), and many more.
Of Stranger Spaces

Kenji Yoshino

The link between the words “stereotype” and “cliché” is an etymological expression of the relationship between social strangers and literary discourse. This chapter addresses the question of literary form by focusing on the genre of utopian literature, which provides a useful picture of estrangement from the real worlds we inhabit and gives rise to a productive self-consciousness in their readers. However, it argues that utopias fail as both art and governance plans because the worlds they conjure are at best illiberal and anti-legal. It compares the illiberalism of utopias with the anti-totalitarianism of “heterotopias,” a concept introduced by Michel Foucault, and suggests that legal heterotopias can exploit the virtues of utopian thinking without being entrapped by its vices. It also argues that legal actors often deprive themselves of force precisely to engage in flights of fancy. The chapter examines three different genres through which the law engages in acts of heterotopian imagination—dissents, hortatory laws, and dicta—and illustrates their important role in the development of the concept of color blindness.
Cultural Preservation: Fear of Drowning in a Licensing Swamp

Diane L. Zimmerman

Although little empirical evidence exists as to what legal regime would best incentivize the creation of expressive works, the system we have adopted quite universally relies on giving authors and their assigns comprehensive, long-lasting control over their original works. Because this system is increasingly reinforced by a restrictive international regime of treaties and trade agreements, deviations downward in a national legal system away from current high levels of protection are largely foreclosed. With a few exceptions (most notable the collective administration of music performing rights and, in the United States, compulsory licensing of compositions for sound recording), bargaining to use copyrighted works is an individualized process where the availability and price of a license are uncertain ex ante, and the cost of negotiation alone can quickly exceed the benefits that either side could anticipate from the bargain. Copyright shares these problems with the patent system, but as discussions in this volume about patent pools, sharing norms, and other strategies to avoid what Heller and Eisenberg have termed the ‘tragedy of the anticommons’ illustrate, forms of cooperative behavior that promote the use of innovations have more readily emerged in the field of patents than in copyrights. One can only speculate on why this might be so. Perhaps one reason is that patents typically do not stand alone; a patented innovation often cannot be put to productive use unless it can be combined with innovations that have been patented by other players. Even when the number of patents that must be coordinated for a project is large, enlightened self-interest seems to push individual owners to find ways around the bargaining issues because, at the end of the day, it is the only choice if owners want to enjoy potential market rewards. In contrast, the expression in copyrighted works typically has market value without needing to be combined with expression belonging to large numbers of others. As a result, the need for complex coordination to exploit the value protected by copyright does not resonate in the same way with copyright owners. Some important exceptions exist of course, and a limited number of statutory mechanisms to deal with them have developed. Aspects of the work for hire doctrine, for example, deal with a subset of works created out of multiple contributions by statutorily assigning ownership in all the pieces to a single controlling entity or individual. In other cases, individual owners have voluntarily engaged in coordinated rights management, not to combine works, but to facilitate individual licensing of so-called small uses of their work in a way that is cost-effective. But—excluding the Google Book Search Library Project (Google Library), where a scheme for massive licensing of works copyrighted under US law came out of a class action law suit and the resulting settlement agreement (which at press time has yet to be approved by the court)—if the interest in achieving coordination is driven more by public demand than self-interest internal to the copyright-owning community, adequate mechanisms to further such coordination are unlikely to exist. As a result, socially valuable uses of existing works go unmade because the traditional route to obtaining permissions for uses involving many, many works is licensing them one by one. Those who wish to provide benefits for end users—be they libraries, cultural institutions, or even commercial providers—are likely to find the time, expense, and frustration of trying to navigate the permission process an insurmountable barrier to success. Recognition of the scale of the difficulties face by those who want permission to make innovative uses of large numbers of copyrighted works is fairly recent, and solutions difficult to achieve. The example this Chapter will focus on is the problem faced by libraries, cultural institutions, and other organizations worldwide that want to engage in long-terms digital preservation of texts, music, and other cultural expression. I choose this issue because preservation is of great value, but tends not to attract much public attention. But it is, of course, only a single example of the multiplicity of possible downstream uses of copyrighted works, offering large positive externalities that are unlikely to be realized unless come compromise can be found that takes the burden of individuated negotiations off the shoulders of innovative intermediaries who want both to serve the public interest and respect the incentive system that copyright represents. Think, for instance, of the formation of digital libraries searchable by readers working in the stacks or from their desks at home. Or the creation of electronic educational and cultural databases that can pull together scattered works bearing on specialized topics. Or the development of software and linkages through which users can gain electronic access to particularized works that exist, physically, only in remote locations around the world. Even the creation of traditional analog catalogues and reference works is hampered by the barrier of permission-gathering. As things now stand, anyone who needs permissions to use all or parts of large numbers of copyrighted works will quickly find herself lost in a licensing swamp. Many a socially valuable project has drifted into that swamp, never to re-emerge. It is a situation that, in the long run, does not benefit the copyright owner, the would-be downstream user, or the public.
Pornography, Child

Amy M. Adler

The Child: An Encyclopedic Companion offers both parents and professionals access to the best scholarship from all areas of child studies in a remarkable one-volume reference. Bringing together contemporary research on children and childhood from pediatrics, child psychology, childhood studies, education, sociology, history, law, anthropology, and other related areas, The Child contains more than 500 articles—all written by experts in their fields and overseen by a panel of distinguished editors led by anthropologist Richard A. Shweder. Each entry provides a concise and accessible synopsis of the topic at hand. For example, the entry “Adoption” begins with a general definition, followed by a detailed look at adoption in different cultures and at different times, a summary of the associated mental and developmental issues that can arise, and an overview of applicable legal and public policy. While presenting certain universal facts about children’s development from birth through adolescence, the entries also address the many worlds of childhood both within the United States and around the globe. They consider the ways that in which race, ethnicity, gender, socioeconomic status, and cultural traditions of child rearing can affect children’s experiences of physical and mental health, education, and family. Alongside the topical entries, The Child includes more than forty “Imagining Each Other” essays, which focus on the particular experiences of children in different cultures. In “Work before Play for Yucatec Maya Children,” for example, readers learn of the work responsibilities of some modern-day Mexican children, while in “A Hindu Brahman Boy Is Born Again,” they witness a coming-of-age ritual in contemporary India. Compiled by some of the most distinguished child development researchers in the world, The Child will broaden the current scope of knowledge on children and childhood. It is an unparalleled resource for parents, social workers, researchers, educators, and others who work with children.
Age of Innocence: Jim Lewis Talks to Amy Adler

Amy M. Adler and Jim Lewis

Modern Art Culture: A Reader provides an essential resource for understanding the culture of modern art since the 1960s. In recent years, media theorists and historians have asked whether works of imaginative art can have any impact in our image-saturated culture. Given the power of institutions, how do radical artists produce effective cultural interventions? In the aftermath of September 11th, 2001, many argue that pressing questions about works of art and their meanings are inseparable not only from contemporary social and political issues but also from major debates and developments in the last four decades. To explore such questions and issues, the Reader is divided into six related parts with articles from journals, magazines and exhibition catalogues that exemplify important interventions from the 1960s onwards: Histories, Representations and Remembrance; Art and Visual/Mass/Popular Culture; Institutions; Inclusions/Exclusions; Bodies and Identities; Power and Permissibility. Texts range from artists’ engagement with the veil and veiling as metaphors for post-colonialist understandings of representation and contemporary art to early debates about, for example, ‘activist art’, discourses of the ‘body’, civil rights, ethnicity, and cultural power. Importantly these selected texts offer examples of analysis that can enable readers to examine, critically, their own selection of representations produced in a variety of contexts.
Alternatives to International Criminal Justice

José E. Alvarez

For most of recorded history, the response to what today we would call ‘international crime’, including mass atrocities, has been to avoid the mechanisms of international criminal justice. There was, after all, a gap of nearly 500 years between the first known internationalized war crimes prosecution and the second, at Nuremberg after World War II (see Nuremberg IMT), and nearly half a century before another comparable attempt, through the ICTY and the ICTR. Today, despite the turn to a motley collection of internationalized criminal courts, it remains probable that the majority of perpetrators of serious international crimes will not be brought before any of them. The ad hoc war crimes tribunals and especially the new ‘hybrid’ models in East Timor, Kosovo, and Sierra Leone (which lack even the rhetorically useful possibility of being backed by Chapter VII enforcement), as well as in Lebanon, have severely limited jurisdictions, restricted resources, and uneven legitimacy (see mixed or internationalized tribunals). As for the ICC, that Court, wholly apart from its limited capacity, will not terminate states’ recourse to the alternatives surveyed here for many reasons: (i) not all states are ICC parties and some that are not, namely the US, are attempting mightily (as through ‘Article 98’ bilateral agreements) to preclude their nationals from being subject to its jurisdiction; (ii) only three forms of international crimes are subject to its jurisdiction; (iii) the most common form of mass atrocity (namely that occurring within the jurisdiction of a state and by its own nationals) may be beyond the reach of the Court’s comprised jurisdiction; (iv) only a fraction of ICC parties have so far made it possible under their domestic law to both cooperate with the Court and to be able to nationally prosecute perpetrators; and (v) complementarity defers to national processes. Further, as is suggested by the ICC’s complementarity scheme, for all but a handful of international lawyers, national courts (for civil or criminal trials) remain preferable in most instances because these are usually closer to the crimes, the perpetrators, the victims, and the evidence, and therefore are more likely to deter criminals, preserve a truthful historical record, mollify victims, affirm the rule of law, and promote national reconciliation—even when international crimes of interest to the ‘international community’ are involved. The needs of Realpolitik have led most states most of the time to avoid criminal accountability. As Cassese’s contribution to this volume explains: (i) it may be politically impossible to put on trial the usual perpetrators of such offences (namely state officials); (ii) administrating justice may be too difficult during a conflict or the temptations of reconciliation too great once it is over; (iii) it may be untenable to prosecute individually mass offences committed by many; or (iv) neither the laws nor the courageous, competent and honest officials exist to pursue fair prosecutions or to adjudicate civil claims. Impunity—whether in the guise of simply doing nothing in the wake of mass crimes or through a ‘blanket amnesty’ purporting to exchange amnesia for peace—has often been the result. But the response to mass atrocities has not been limited to a harsh choice between impunity and bringing all perpetrators to account in court. In some cases states have resorted to the other alternatives surveyed here—truth commissions, lustrations or other non-criminal sanctions, distinct forms of amnesty, and other mechanisms to respond to victims. Recourse to such non-prosecutorial alternatives is not always an immoral, ill-considered, or venial attempt to avoid accountability or defy the rule of law. Advocates of ‘restorative justice’ have argued that in some cases the pursuit of these or other alternatives to criminal accountability is more likely to achieve the grandiose goals associated with Nuremberg.
The Argentine Crisis and Foreign Investors: A Glimpse into the Heart of the Investment Regime

José E. Alvarez and Kathryn Khamsi

Actions taken by the Argentine government in response to its 2001 economic and political crisis have resulted in the greatest wave of claims by foreign investors against a single host country in recent history. Of the over forty claims filed to date against Argentina pursuant to bilateral investment agreements (BITs) in the wake of that crisis, a number of arbitral awards have now been issued. These include four involving claims by U.S. investors in Argentina’s gas transportation and distribution utilities—CMS, Enron, Sempra, and LG&E (henceforth the Argentine Gas Sector Cases ). In all four cases, ad hoc tribunals established under the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) rules have found Argentina liable for its actions. The damage awards, three of which exceeded $100 million, have been among the highest ever rendered by an ICSID tribunal. The damage award in the CMS case was affirmed in an annulment proceeding. Requests for annulment of the LG&E, Enron and Sempra Awards are pending. Although all of these decisions interpret and apply the same treaty, the Treaty Between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment of 1991 (henceforth the U.S.-Argentina BIT), to a strikingly similar set of facts, the five judgments issued to date differ on a number of points, and in particular concerning the interpretation of that treaty’s “measures not precluded” (NPM) clause (Article XI). Specifically, although there is significant commonality between the CMS, Enron, and Sempra decisions (which is not surprising, given the overlap in arbitrators), the LG&E Decision on Liability and the CMS Annulment Award differ markedly from the other decisions in their treatment of Argentina’s central defense to the investors’ claims, namely that its financial crisis excused it from compensating injured U.S. investors for breach of the U.S.-Argentina BIT (Article XI). Only the LG&E panel accepted this defense and excused part of Argentina’s liability on this basis. Although the CMS Annulment Committee did not annul the CMS liability decision, it severely criticized it in terms that suggested considerable sympathy with the position taken by the LG&E arbitrators.
Cosmopolitan Ethics

Kwame Anthony Appiah

This compendium gives an outline of the historical, philosophical and ethical aspects of the return of cultural objects (e.g. cultural objects displaced during war or in colonial contexts), cites past and present cases (Maya Temple Facade, Nigerian Bronzes, United States of America v. Schultz, Parthenon Marbles and many more) and analyzes legal issues (relevant UNESCO and UNIDROIT Conventions, Supreme Court Decisions, procedure for requests etc.). It examines the ways in which peoples have lost their entire cultural heritage and analyzes the issue of its return and restitution by providing a wide range of perspectives on this subject.
Defending the Universal (Encylopedic) Museum

Kwame Anthony Appiah

The eminent contributors to this volume provide museum leaders with a different set of criteria for evaluating the success of their museums, proposing a set of sustainable values that can help museums preserve themselves and advance their social mission in hard times - and help them thrive when times improve. While attendance and money will continue to count and be counted in our museums, numbers alone can never drive sustainable success. Only the unique dynamic identity that a museum can claim will do that.
Explaining Religion: Notes Toward a Research Agenda

Kwame Anthony Appiah

I begin by arguing that our model of religion is often based on Christianity. A Christian model of religion is going to look for gods and creeds, churches, priests, prayer, collective worship, moral codes, each of which is absent in some of the things we might want to call religions. And it may well ignore dietary and sumptuary rules or cult for ancestors, which are important in some of them. Religion is a paradigm of what Wittgenstein taught us to call a “family-resemblance” concept: each religion, like each member of a family, is like every other, in some respect, but there are few, if any, characteristics they all share. So the first thing we need to do in trying to decide what it is we’re explaining is disaggregate the elements that come together in Christianity; if we find that they usually come together that will be one of the things that we need to explain. What then are the questions worth focusing on? I think that, from an evolutionary point of view, it will be two families of issues. First will be the social and the cognitive features of religions that make their explanation challenging. A second family of issues worth exploring, once we have identified these components, is how they fit together. Why, for example does belief in invisible beings go with rituals dealing with disaster? Why does agreement in creeds go with creating powerful social groups that last across the generations? When one finds broad patterns across many societies there are usually two natural types of explanation that spring to mind. One is that the pattern reflects shared solutions to common problems, independently discovered: evolutionary homology, as it were. The other is diffusion from common sources: in a word, copying. I suspect that much of what is share in the organization of religions globally today is the result of diffusion. But, of course, why some patterns diffuse successfully and others don’t is itself something that needs explaining.
Philosophy In and Out of the Armchair

Kwame Anthony Appiah

One thing philosophers claim to do is: analyze concepts. We do this in language, so our analyses appear as sentences that we claim are conceptual truths. We utter sentences containing a word that expresses a certain concept: ‘green’, say, which expresses the concept green. But a conceptual truth is not just a true sentence that uses a concept: ‘The concept green applies to my shirt’ is a truth but not a conceptual truth. Rather, a conceptual truth is a truth that anyone who has the necessary concepts is in a position to know: e.g. ‘Green is a color’. Nothing more than knowledge of concepts is required to know that this is true. And, surely, knowledge of the concepts expressible in our language is just what all of us have with us wherever we go. As a result, as Tim Williamson once put it, ‘If anything can be pursued in an armchair, philosophy can.’
Racial Identity and Racial Identification

Kwame Anthony Appiah

Theories of Race and Racism: A Reader provides an overview of historical and contemporary debates in this vital and ever-evolving field of scholarship and research. Combining contributions from seminal thinkers, leading scholars and emergent voices, this reader provides a critical reflection on key trends and developments in the field. The contributions to this reader provide an overview of key areas of scholarship and research on questions of race and racism. It provides a novel perspective by bringing together readings on the key theoretical and historical processes in this area, the development of diverse theoretical viewpoints, the analysis of antisemitism, the role of colonialism and postcolonialism, feminist perspectives on race and the articulation of new accounts of the contemporary conjuncture. The contributions to this reader include classic works by the likes of W.E.B. DuBois, Stuart Hall and Frantz Fanon as well as timely pieces by contemporary scholars including Orlando Patterson, Patricia Hill Collins and Paul Gilroy. By bringing together a broad range of diverse accounts, Theories of Race and Racism: A Reader engages with various key areas of interest and is an invaluable guide for students and instructors seeking to explore issues of race and racism.
Whose Culture Is It, Anyway?

Kwame Anthony Appiah

The global community, dependent as always on the cooperation of nation states, is gradually learning to address the serious threats to the cultural heritage of our disparate but shared civilizations. The legacy of conquest, colonialization, and commerce looms large in defining and explaining these threats. The essays contained in this challenging volume are based on papers presented at an international conference on cultural heritage issues that took place at Willamette University. The conference sought to generate fresh ideas about these cultural heritage issues; offer a good sense of their nuances and complexities; and reveal how culture, law, and ethics can interact, complement, diverge, and contradict one another.
The Story of Allis-Chalmers, Caremark, and Stone: Directors' Evolving Duty to Monitor

Jennifer H. Arlen

This chapter explores the evolution of Delaware’s law governing directors’ duties to oversee legal compliance. It is a story of how changes in federal criminal law induced Delaware to reform its approach to directors’ oversight duties. It also is the story of the struggle between the Delaware Chancery Court and the Delaware Supreme Court over how broad to make directors’ oversight duties and liability.
Comments - An Ounce of Prevention: Realistic Treatment for Our Pathological Politics

Rachel E. Barkow

This chapter presents an authoritative overview of the political economy of criminal law and procedure, with particular emphasis on Bill Stuntz's critique of the modern American criminal justice system in his paper The Pathological Politics of Criminal Law. It begins with a discussion of Stuntz's views about the political economy of overcriminalization, the pathology of overbroad and “overdeep” criminal laws, and how to return to the rule of law. It then examines the principal-agent problem in criminal law and asks whether more constitutional law is better. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as criminal codes, the role of history and sociology in punitive pathology, the political economy of prosecutorial indiscretion, and prosecutor elections and overdepth in criminal codes.
Mercy's Decline and Administrative Law's Ascendance

Rachel E. Barkow

This chapter presents an authoritative discussion of the decline of mercy and the rise of the administrative state and the concepts of law that have emerged alongside it. It begins by charting the development of administrative law and the importance of judicial review before turning to the decline of jury nullification and executive clemency as well as the relative acceptance of prosecutorial discretion. It then considers the centrality of judges in administrative law and the place of mercy in criminal law. It concludes with a normative critique, based on key differences between criminal law and administrative law, that challenges the application of an administrative law framework to the exercise of mercy in criminal cases. The chapter includes comments by some of the nation's top legal scholars from the field of criminal law, tackling topics such as the subjective and objective discretion of prosecutors, prosecutorial power, equality, political versus administrative justice, and criminal law representative populism.
Fiscal Considerations in Curbing Climate Change

Lily Batchelder

Climate change abounds with fiscal issues. At a macro level, the debate between a carbon tax, cap-and-trade system, and command-and-control regulation is about the extent to which the tax system is the best vehicle to address climate policy objectives. At a micro level, energy-related fiscal incentives and the tax treatment of carbon taxes, carbon permits, and climate markets can have important implications for a regime’s effectiveness. The question of how to address the distributional impacts of carbon mitigation, both domestically and internationally, is also a fiscal issue. This chapter provides a brief summary of the fiscal, administrative, and political considerations relevant in designing a climate migration regime. It then focuses on the importance of distributional offsets, and the challenges in implementing them.