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  The Child's Access to Diverse Intellectual, Artistic and Recreational Resources: Articles 13, 17, 28, 31 and 32

  Martin Guggenheim

  This chapter principally examines how American law comports with articles 17 and 31 of the Convention on the Rights of the Child. These articles have been combined for analysis because of their substantial overlap. Article 17 recognizes the important function performed by the mass media and seeks to ensure that children have broad access to information and material aimed at the promotion of their social, spiritual and moral well-being and physical and mental health. Article 31 recognizes the right of children to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. For the reasons set out in this chapter, there are no impediments to the United States' ratifying the UN Convention on the Rights of the Child as it relates to these two articles.

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  Introduction

  Stephen Holmes

  Behemoth, or The Long Parliament is essential to any reader interested in the historical context of the thought of Thomas Hobbes (1588-1679). In De Cive (1642) and Leviathan (1651), the great political philosopher had developed an analytical framework for discussing sedition, rebellion, and the breakdown of authority. Behemoth, completed around 1668 and not published until after Hobbe’s death, represents the systematic application of this framework to the English Civil War. In his insightful and substantial Introduction, Stephen Holmes examines the major themes and implications of Behemoth in Hobbes’s system of thought. Holmes notes that a fresh consideration of Behemoth dispels persistent misreadings of Hobbes, including the idea that man is motivated solely by a desire for self-preservation. Behemoth, which is cast as a series of dialogues between a teacher and his pupil, locates the principal cause of the Civil War less in economic interests than in the stubborn irrationality of key actors. It also shows more vividly than any of Hobbe’s other works the importance of religion in his theories of human nature and behavior.

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  Liberal Constraints on Private Power?: Reflections on the Origins and Rationale of Access Regulation

  Stephen Holmes

  The long debate over federal regulation of commercial broadcasting has focused largely on constitutional, administrative, technological, and economic questions. But the fairness doctrine, right-of-reply laws, and equal opportunity provisions cry out for a treatment that is simultaneously more historical and more theoretical. They raise questions as fundamental as, What are the legitimate purposes and proper limits of state action? What is the basic rationale for press immunity from government control? For what purposes can this special freedom be curtailed? Even a superficial answer to such questions presupposes a historical understanding of the political traditions encoded into the U.S. Constitution, not to mention a theoretical analysis of the preconditions for effective democratic government.

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  Political Psychology in Hobbes’s Behemoth

  Stephen Holmes

  Although cast as a dialogue, Behemoth is unmistakably Hobbesian in style as well as theme. The explosiveness of the language reflects the crotchety impatience of the author's mind. As his perverse contribution to the “act of oblivion” of 1660, meant to inhume twenty years of animosity, Hobbes skewered all parties in the English Civil War: lawyers, merchants, soldiers, city-dwellers, Commons, Lords, bishops, Presbyterians, king's advisers, and of course, the people. Stupidity and corruption are ordinary human failings, but seldom have they seemed so effortlessly combined. His censorious, although nonpartisan, approach reveals Hobbes's modest talents as a coalition builder. It also helps explain Charles II's reluctance to license prompt publication of the work. Completed in manuscript around 1668, Behemoth represents Hobbes's mature understanding of political breakdown and the reestablishment of authority. This time his theory of “human nature in general” is not filtered through a set of political recommendations. Instead, it is expressed in a description of the way human beings behave—not the way they might behave under imaginary or ideal conditions, but the way they actually did behave in England between 1640 and 1660. Not surprisingly, an anatomy of disorder is more realistic than a blueprint for order. Particularly noteworthy is Behemoth's fine-grained account of human motivation. The psychological assumptions inspiring its historical narrative may not be totally consistent, but their richness and subtlety are compelling.

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  The Secret History of Self-Interest

  Stephen Holmes

  George Stigler exhorts us to admire “the granite of self-interest” upon which the palace of economics is built. Throughout most of Wealth of Nations, he writes, Adam Smith took a hard line, explaining the endurance of colonialism, primogeniture, and slavery by invoking the self-interest of the principal actors involved. Slavery panders to the pride of slaveholders, and therefore serves their self-interest. (This is Stigler's paraphrase of Smith.) Unfortunately, Stigler continues, Smith failed to turn “the jaundiced eye of a master economist” upon political life. In thinking about politics, he was not hard but soft. He ascribed excessive influence to emotion and prejudice, and, shockingly, spied “failures of self-interest in guiding people's behaviour.” If Smith had only been as tough-minded as Stigler and his colleagues, he would have recognized that every “alleged failure” of self-interest was “non-existent or of negligible magnitude.” Today this attitude toward self-interest is widespread among economists and the social scientists most influenced by them. But it was rare or unheard-of in the eighteenth century. Throughout Smith's great economic treatise, significantly, interest was contrasted with pride. Although Britain would benefit from relinquishing its dominion over the American colonies, it was unlikely to do so: “Such sacrifices, though they might frequently be agreeable to the interest, are always mortifying to the pride of every nation.” Because it is an unnatural means of enriching one child while beggaring his siblings, primogeniture is against “the real interest of a numerous family” even though it supports “the pride of family distinction.” Landowners retain their slaves because they are driven by a natural inclination to bully and preside-even when such gratuitous domineering entails economic deprivation. Smith repeatedly states that self-interest, however robust, is merely one motive among others. He also assumes that people are sometimes rational, sometimes not. The majority of every class is usually governed by common prudence; yet Europe's landed nobility destroyed itself by a most imprudent vanity. In other words, Smith concedes, indeed he stresses, the massive historical importance of self-destructive and noncalculating behavior. Under certain conditions, we must appeal to motives other than interest to understand not this or that scattered event, but the drift of social and political change. His ideas about motivation, in other words, are distinct from, and perhaps more interesting than, those of his purported successors. In explaining human action, he routinely invokes the distinction (common at the time) between “interests, born of calculation, and passions, based on impulse.” This opposition is fundamental—and not merely for those seeking to master the vocabulary of Wealth of Nations. The concept of self-interest was one of the most striking coinages of modem European thought. In phrases such as “special interests” and “interest groups;” it continues to play an important role in the self-description of contemporary societies. To study its origins and development is to learn something essential about the prism through which we have come to interpret our lives. Unfortunately, for a variety of reasons, the evolution of the concept of self-interest has remained shrouded in obscurity. To dispel the clouds, to disclose some remarkable aspects of the idea's history, we must focus sharply on the all-important contrast between calculating interest and noncalculating passion. This essay has three objectives. First and foremost, I want to document the incredible finesse with which Smith and his contemporaries analyzed the human psyche. A brief historical survey is meant to suggest the pitiful impoverishment that befell us, sometime in the nineteenth century, when Marxism and liberal economics conspired to assert the supremacy of interest and thus to extinguish an older and subtler tradition of moral psychology. Second, I hope to explain how the increasingly positive attitude toward self-interest, typical of a broad range of seventeenth- and eighteenth-century theorists, was motivated not only by discontent with the aristocratic ideal of glory, but also by disenchantment with the Christian dogma of original sin. And third, I want to suggest that the postulate of universal self-interest, although logically incompatible with insight into the rich variety of human motives, first rose to cultural prominence because of its unmistakably egalitarian and democratic implications. Consider, first of all, some intriguing psychological assumptions Smith borrowed from David Hume.

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  Introduction: Grotian Thought in International Relations

  Benedict Kingsbury and Adam Roberts

  This exposition of the main themes of the book considers the significance of De Jure Belli ac Pacis; the concept of ‘international society’ in the Grotian tradition; the place of war in international society; law as an institution of international society; the enforcement of international law against third states; the place of the non‐European world in Grotian thought; the universality of international society and international law; and the Grotian tradition in international relations.

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  The Gender Question in Criminal Law

  Stephen J. Schulhofer

  Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are predictable subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery. Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law—conceived in terms seemingly uncongenial to a large part of our population—would require thorough reexamination. I offer some very tentative thoughts about where such a reexamination might lead, with a particular focus on the law of self-defense and rape.

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  Judicial Adjuncts Revisited: Masters and Magistrates in the Federal Courts of the United States

  Linda J. Silberman

  Two very special birthdays took place in 1988, and they relate to the subject of this article. One was the eightieth birthday of my close friend and mentor. Sir I. H. (“Jack”) Jacob, to whom I write in tribute. The other, which received substantial attention on my side of the Atlantic, was the fiftieth birthday of the Federal Rules of Civil Procedure, the rules which govern proceedings in the federal district courts of the United States. Sir Jack introduced me to the importance of the “judicial adjunct” during his tenure as Master (and later, Senior Master) of the High Court of Justice. In 1968-69, under the auspices of a Fullbright Scholarship from the United States and under the direction of Master Jacob, I undertook an in depth study of the English master system. I came away from that year immensely impressed with the value of separating the pre-trial and trial portions of litigation and delegating substantial pre-trial activity to “specialists”—the “English master” in the British system. In the United States at that time, no such specialisation of function existed. District judges in the federal courts, particularly with the adoption of the individual assignment system, took responsibility for an entire case—including pre-trial planning, scheduling, pre-trial decision-making and even settlement. Although the federal court system has traditionally used “special masters,” the American special master had little in common with the English master—other than the name. Special masters in the United States had their historical roots in English Chancery practice, not the later system of Queen's Bench masters, and they were appointed in selected cases to assist judges during trial in matters of account or report on matters of evidence. Thus their function was largely one of trial (and not pre-trial) assistance. The direct American analogue to the English special master is the more modern “federal magistrate” introduced into federal judicial system with passage of the Federal Magistrates Act in 1968 to undertake a substantial pre-trial role, much like the Queen's Bench English master. In recent times, however, both the federal magistrates and “special masters” have developed a substantial pre-trial role, and the role of the judicial adjunct has expanded in the federal courts. Moreover, other related developments are taking place in the United States, such as the creation of court-annexed arbitration for the federal courts. There is no doubt that the use of judicial adjuncts has been extremely valuable in processing the expanding and complicated contemporary litigation caseload. But there has been a corresponding development accompanying the increased use of judicial adjuncts, which bears a closer look. Delegations of judicial power to masters and magistrates have resulted in individual case-by-case customised procedure put in place by judicial adjuncts and a kind of ad hoc procedure. This “new” procedure exposes the myth that there is in fact a single set of Federal Rules of Civil Procedure; it questions whether the “transubstantive philosophy of Rulemaking”—the premise that a single set of general rules should govern all different types of cases—which has guided the Rules Committees since their inception in 1938 continues to be appropriate. The rulemaking debate in the United States today can be seen as one between those who are satisfied with an individual case-by-case customised procedure put in place by judicial adjuncts versus those who advocate more formal rules that do not slavishly adhere to a uniform and transubstantive format. On the occasions of the celebration of the fiftieth anniversary of the Federal Rules of Civil Procedure and of the eightieth birthday of Sir Jack, who, as editor of the Annual Practice, has been so central to thinking about procedural rulemaking, I thought it appropriate to use the vehicle of judicial adjuncts to discuss not only some of the developments that have taken place in the use of magistrates and masters in the United States but also the competing American views of rulemaking philosophy. To that end, I have two main purposes in this article: first, I trace the developments of the roles of masters and magistrates in the federal judicial system and make specific suggestion for revisions in the Federal Rules of Civil Procedure to deal with their use; and second, on a more ambitious note, I submit that transubstantive procedure exists in name only, and I advocate a shift to a rulemaking philosophy that would take account of alternative procedural tracks for processing different types of cases. Because both of these proposals have more to do with the use of special masters than magistrates, my emphasis will be on the use of special masters. But it is worth looking at both models for points of contrast.

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  Rights and Majorities: Rousseau Revisited

  Jeremy Waldron

  The distinction between political theory and political philosophy often seems artificial. The two terms pick out much the same discipline pursued under the auspices of different academic departments. But one topic where there has been a considerable divergence of emphasis between political theorists and political philosophers—or between those who study political morality in philosophy departments and those who study it in departments of political science—is the topic of fundamental rights. Those who believe in rights hold the view that individuals and minorities have certain interests that they can press, certain claims they can make against the rest of the community that are entitled to respect without further ado. Of course this view is controversial: some believe that individuals and minorities have rights in this sense, others do not, and even among those who do considerable disagreement exists about the nature of those rights. The divergence I am interested in, between political philosophers and political theorists, involves two different ways of characterizing that controversy. For philosophers, the controversy has usually been characterized as a choice between individual rights and some version of utilitarian theory. They have taken the controversy to be one about justification. Is utilitarianism, as it claims to be, an adequate theory of political justification, or does it need to be supplemented (or indeed replaced) by an independently grounded theory of individual rights? For political theorists, the contrast is characteristically not with utilitarianism but with majoritarian democracy. Political theorists are interested in forms of political decision making, and they take the argument to be about political legitimacy. Is there nothing that cannot be made legitimate by a majority decision? Or should we recognize limits, based on individual rights, on what a majority can commit a society to do? The contrast between justification and legitimacy may appear bewildering at first, particularly since both are used here in a normative sense. To ask whether a decision is justified is to ask whether it is, on the merits, the right decision; it is to look at the reasons weighing in favor of the course of action decided upon. To ask whether a decision is politically legitimate, however, is to raise a procedural question; it is to ask whether it was taken in the way such decisions ought to be taken. We need a distinction between justification and legitimacy, particularly in a democratic context, because we need some way of distinguishing between the reasons voters have for voting as they do, and the reasons officials have for implementing a certain decision after the votes are counted. I may vote in a popular initiative for California to have a lower speed limit because I think saving lives matters more than fast cars; that is what I think about justification. But I believe the speed limit should stay as it is if most people in the state disagree with me; that is what I think about legitimacy. Clearly, the fact that the majority approves of something is not a good reason for someone to vote in its favor (indeed, if every- one voted on the basis of reasons like that—"I vote for what the majority thinks"—voting would collapse as a practice). Reasons for supporting a proposal of something are logically distinct from reasons for acting in politics on the basis of the fact that people support a proposal. Both are normative, but they capture different stages or levels of normativity in relation to political decision making. Rights, then, can be seen—and are seen characteristically by philosophers—as an issue in the theory of justification. And they can be seen—and are seen characteristically by political theorists—as located in the theory of legitimacy. In this chapter, I develop some ideas about the relation between these two ways of conceptualizing the issues. What is the relation between rights versus utility, on the one hand, and rights versus democracy, on the other?

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  The Power to Propose

  David P. Baron and John A. Ferejohn

  Since the appearance of Woodrow Wilson's Congressional Government more than a century ago, observers of the American Congress have been impressed with the importance of legislative committees. Writing in a period in which committees were not as central in the policy-making process as they were to become half a century later, Wilson argued that most important legislative activity took place in committees and that the parent chambers tended to ratify decisions taken in committee. Reflecting the centrality of committees in Congress, the revival of congressional studies over the past three decades was marked by a series of landmark committee studies as discussed by Richard Fenmo in The Power of the Purse (1966).

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  Commentary, Alternate Modes of Reproduction: The Locus and Determinants of Choice

  Peggy C. Davis

  Long before the Baby M case ignited passions and made debate about surrogacy a national pastime, the participants in the Project on Reproductive Laws for the 1990s saw the need to consider the profoundly difficult questions surrounding legal regulation of new reproductive technologies. Their position papers are reflective of broad concerns, rather than reactive to an immediate controversy. They enable us both to learn from individual cases, like the case of Baby M, and to put the lessons of those cases in a larger context. The Andrews paper, which serves to focus and inform our discussion of reproduction involving third parties, is no exception. It is enriched by a broad perspective, a wealth of information, and the judgment of a woman who has given careful and sustained consideration to the intricate set of policy concerns that surround official regulation of sexual and family matters.

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  General Overview of the Intellectual Property System

  Rochelle C. Dreyfuss

  In recent years, scientific discoveries and new technologies - as well as new, intricate relationships among academic researchers, government, and private industry - have begun to pose a whole range of novel problems in intellectual property rights. Should computer software be patented or copyrighted? How can ownership of plant varieties, genetically engineered organisms, and their products be protected? Should body parts and cell lines derived from them be patented? What is the impact of changes in intellectual property rights on the process of scientific research and development? Beyond the practical questions and their economic implications lie important ethical and philosophical ones. Should ideas and information be owned at all? How should the proprietary rights of the inventor be balanced against society's right to the free flow of information and equal access to the use of a discovery? Should the idea itself be regarded as property, or only the form in which it is expressed? The fifteen essays in this volume provide a solid foundation for any discussion of these issues. They survey the current intellectual property system in the U.S., describe several important historical precedents, explore ongoing controversies in computer science and biotechnology, and offer critiques of leading moral and legal theories about ownership of knowledge. This book is invaluable for anyone who has to deal with questions of intellectual property in theory or in everyday practice.

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  Congressional Influence on Administrative Agencies: A Case Study of Telecommunications Policy

  John A. Ferejohn and Charles Shipan

  Original essays by leading scholars offer a cutting edge perspective on change in the modern Congress. Dodd and Oppenheimer provide the reader with up-to-date knowledge and insights through a series of articles by many of the best congressional scholars researching the contemporary institution and its historical development.

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  Congress and Telecommunications Policymaking

  John A. Ferejohn and Charles R. Shipan

  Changes in telecommunications policy are often thought to be controlled by agencies, courts, and telecommunications businesses, with Congress helplessly observing from the sidelines. To be sure, there is a great deal of legislative activity—irate speeches, bills, hearings, legislation reported from committees—but the massive changes in telecommunications regulation in the past decade have not been made in the Capitol. Virtually every attempt at legislation bogged down somewhere in the legislative labyrinth. Many observers have therefore concluded that Congress is powerless in the telecommunications area.

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  Antitrust Law Enforcement: Antitrust Division

  Harry First and Eleanor M. Fox

  The 41st president and 101st Congress must resuscitate antitrust. Minimalist antitrust enforcement, especially in the area of mergers, is the legacy of the Reagan Administration. Not only have there been few actual challenges to mergers, but lax enforcement policy has also emboldened business firms to propose mergers of a size which would not have been entertained seriously a decade ago. These mergers will adversely affect our economy in many areas, from airlines to supermarkets, from the oil industry to computers. Reagan antitrust enforcers have also refused to enforce the law which prohibits resale price-fixing, thereby increasing the prices that consumers must pay. Although vigorously prosecuting small-scale bid rigging conspiracies, Reagan antitrust enforcers have not looked for illegal cartel behavior in major industries or for foreign cartels seeking to dominate United States markets. It will not be enough, however, simply to revive antitrust. Antitrust enforcement in the next administration must recognize the impact of foreign competition and trade policy. Antitrust must be coordinated with trade policy to assist strategic industries while still maintaining the spur to innovation that only competition can provide. Specific proposals recommended to the 41st president and Congress include: * Immediate revision of the current Department of Justice Merger Guidelines. * Review of recent mergers to determine whether any have resulted in a substantial lessening of competition, thereby rendering them appropriate for court challenge. * Working in coordination with the State Attorneys General, who have been increasingly active in antitrust enforcement throughout the country. * Immediate withdrawal of the current Department of Justice Vertical Restraint Guidelines and Guidelines for International Transactions. * Investigation and prosecution of resale price-fixing. * Investigation and prosecution of international cartels aimed at United States markets.

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  Critical Reflections on 'Punishment, Custody and the Community'

  David W. Garland

  Papers presented at the Second International Criminal Justice Seminar April 1989 at the London School of Economics

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  Constitutional and Due Process Concerns: Juvenile and Family Courts of the Future

  Martin Guggenheim

  This paper addresses some of the constitutional and due process issues which must be considered when planning any change in the processing of cases involving intra-family violence. Of necessity, this examination is preliminary. It is meant only to identify issues and frame themes which need to be considered in greater depth depending on the precise contours of proposed changes. The issues analyzed here are based on a model for a future court which many of the papers presented at this symposium have advocated: a single family court which processes all matters relating to the family, including dependency, neglect, abuse, termination of parental rights, delinquency, supervision, divorce, custody, visitation, and intra-family violence inflicted on persons of any age, including sex abuse and assaults. The last category, intra-family violence may or may not be limited to misdemeanor cases. The following discussion will assume a court with jurisdiction over all criminal cases relating to family violence. Most of the issues discussed here would be analyzed identically regardless of the seriousness of the offense. The principal novel proposal for this court of the future is the consolidation of civil and criminal jurisdiction in one court devoted to the family. This consolidation raises immediate and obvious consitutional and due process concerns. However, closer examination suggests that few of these concerns are unique to the issue of joining courts together. Most of the issues concerning prosecution of two related matters are the same whether one court or more than one court hears the matters. This does not mean there are no serious constitutional issues to consider. However, most issues must be addressed first by policy considerations and then by careful analysis, point by point, of due process concerns. For example, a principal benefit of a single forum for prosecuting related matters is increasing the probability that relevant information about an offender or a family will not be lost. The fewer the individuals who need information, the smaller the risk that information will be lost or overlooked. If, for example, the same probation officer and prosecutor are involved in both the civil and criminal case, then planners need not worry about designing a system in which prosecutors from different offices learn to communicate with each other. But preferring a system which maximizes the flow and use of relevant information in this way leaves the separate policy question whether there is information which we do not want shared or used in related cases. For example, advocates for change might envision a system in which judges in criminal cases know more about an offender than most judges currently do. These advocates may propose unifying courts to effect this change. However, the question whether judges should have this information is a separate substantive issue which needs to be considered apart from the proposal to unify courts. In other words, proposals for procedural changes should not to be confused with proposals for substantive changes as well. In this paper, I will attempt to identify the consitutional and due process issues arising from any effort to combine courts and processes. However, it is essential that the distinction be maintained between this type of change and one which deliberately seeks to change more than mere structure. This paper assumes that the idea behind the proposed change is to do no more than provide an opportunity for fact- finders and other court personnel to obtain relevant information to which they are already currently entitled. Proposals to change substantive rules about admissibility of evidence and the like must be considered apart from the kinds of structural changes which are at the heart of the proposals for a future juvenile court.

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  John Stuart Mill: Fallibilism, Expertise, and the Politics-Science Analogy

  Stephen Holmes

  Representative government, according to J. S. Mill, is much more restless and onward-moving than government by consent. A defeated minority may agree to a decision-making procedure even while disapproving of a particular decision; but to the outcome of such a procedure, those who are outvoted, by definition, do not consent. What they can do is discuss and, in discussing, they can contribute vitally to a process of collective learning. Public learning is the heart of liberal democracy, or so Mill believed. His political theory was thus indissolubly linked to his theory of knowledge or, at the very least, to his theory of the growth of knowledge.

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  The Permanent Structure of Antiliberal Thought

  Stephen Holmes

  Of all the strands of European social theory, few have proven so enticing and, above all, so enduring as antiliberalism. The political arm of the Counter-Enlightenment, as it might be called, has enjoyed a long and, by most standards, immensely successful career. It drew inspiration—and borrowed indignation—from Rousseau; the list of its nineteenth-century adherents, from Joseph de Maistre to Friedrich Nietzsche, could not have been more illustrious; on the Continent, during the 1920s and 1930s, it achieved something close to cultural dominance; and it continues to spawn articulate and influential proponents even today. This unbroken continuity deserves stressing because contemporary antiliberals, such as Alasdair Maclntyre, Roberto Unger, and Michael Sandel, frequently neglect it. They typically furnish a stylized, even sanitized, genealogy for their central ideas. Maclntyre, for instance, gladly invokes Aristotle. But he makes no mention of the bitter attacks on liberal theory and institutions that have loomed so large in nineteenth· and twentieth-century political thought. This omission is no accident. For one thing, antiliberals like to present themselves as iconoclasts. For another, every antiliberal argument influential today was vigorously advanced in the writings of European fascists. Brilliant but retrospectively discredited theorists, such as Giovanni Gentile and Carl Schmitt, violently assailed the liberal tradition. They excoriated liberalism for its atomistic individualism, its myth of the prosocial individual, its scanting of the organic, its indifference to community, its denial that man belongs to a larger whole, its belief in the primacy of rights, its flight from “the political,” its uncritical embrace of economic categories, its moral skepticism (or even nihilism), its decision to give abstract procedures and rules priority over substantive values and commitments, and its hypocritical reliance on the sham of judicial neutrality. These are much the same arguments one hears today. By mentioning the fascist interlude in the history of antiliberalism, I do not mean to convict today's antiliberals of harboring dangerous thoughts. (They benefit from historical circumstances that make them politically harmless.) I want to draw attention, instead, to the fundamentally ahistorical character of their thinking. Antiliberals talk endlessly about rootedness and tradition, but they nonchalantly disregard their own intellectual descent. They could easily distinguish themselves from their most unsavory precursors, I suppose. Yet they make no effort to do so—leaving readers perplexed. They blithely deplore what they consider the liberal individual's lack of “constitutive attachments,” for example, but they never mention that this complaint was long the centerpiece of anti-Semitic propaganda, of political attacks on “uprooted” and cosmopolitan Jews. They apparently want to rehabilitate fascist rhetoric without fascist connotations. Their failure to consider the grim history of antiliberalism is therefore a serious mistake. Silence about disagreeable antecedents makes it difficult to provide a balanced and fair assessment of their thought. By depicting liberal morality as in “a state of grave disorder,” Maclntyre casts himself in a clinical role. He appears as a doctor of disorder, a therapist for sick theories and hapless societies infected by unwholesome ideas. Because antiliberals are focused so single-mindedly on the ailments before them, in fact, they almost always neglect themselves. I intend to compensate for this self-neglect—to right the balance, return the favor, and supply for them what they have bountifully provided for liberal thought: a diagnosis of antiliberalism's own inner pathologies. The appropriateness of a diagnostic approach is suggested by, among other things, their implausible assumption that, in the century of Hitler and Stalin, liberalism remains the Great Enemy of mankind. Antiliberalism is more a mind-set than a theory. It is more a “culture” or cluster of shared prejudices than a closely argued system of thought. For an analysis of the most popular contemporary American versions of this omnipresent and inveterate outlook, questions of intellectual influence are relatively unimportant. I will focus, instead, on recurrent patterns—on the basic conceptual confusions and historical distortions that invariably becloud the antiliberal mind. I shall try to catalogue and dissect the enduring fallacies of antiliberalism. Economy of presentation requires the construction of an ideal type. No single theorist, not even Maclntyre, is a perfect antiliberal. Liberalism's cleverest critics often qualify their attacks, making important concessions to the enemy. Many of them supplement their criticisms of liberal thinkers with criticisms of rival antiliberal thinkers as well. Despite these complexities, antiliberalism retains the shape of a coherent attitude, if not of a cogent doctrine. Above all, an identical set of mistakes and misdescriptions surfaces, with astonishing regularity, in almost every antiliberal work. After a fairly exhaustive survey, I have managed to identify twenty fundamental fallacies or intellectual failings of antiliberalism: six theoretical confusions and fourteen historical errors. These fallacies have been a permanent feature of Western political theory since the French Revolution. No criticism or exposé will make them disappear. We may shame them into hiding temporarily, but they will soon resurface in a slightly altered guise. The best we can aspire to achieve is not a cure but a list of symptoms. Such an identity kit may nevertheless be of some value. Those who want to think seriously about the problems and deficiencies of the liberal tradition risk being pointlessly sidetracked by antiliberalism's confused and confusing barrage of charges. A survey of the misunderstandings and blunders of our most prominent antiliberals should, however briefly, help keep spurious accusations at bay.

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  The Treaty of Waitangi: Some International Law Aspects

  Benedict Kingsbury

  A remarkable upswell in international activity concerning the position of indigenous peoples has occurred since the beginning of the 1980s. The contemporary New Zealand debate concerning the meaning and significance of the Treaty of Waitangi increasingly draws on international and comparative material, not least in the work of the Waitangi Tribunal. The New Zealand Government is now often called upon to discuss the position of the Māori people in international forums. The Chairman Rapporteur of the United Nations Working Group on Indigenous Populations paid a fact-finding visit to New Zealand in 1988, and Māori representatives addressed the United Nations Commission on Human Rights and the UN Working Group on Indigenous Populations for the first time, later that year. The purpose of this chapter is to survey briefly some of the relevant international legal material which may have a bearing on issues related to the Treaty of Waitangi. The chapter is in three sections. The first briefly examines the status of the Treaty of Waitangi in international law as a treaty of cession. The second discusses the international law principles of good faith, estoppel, and treaty interpretation in relation to Treaty issues. The third section alludes to a few of the many other areas of international law which may be relevant to Māori concerns, focusing specifically on international law aspects of rights to land, to development, and to cultural identity.

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  The New Economic Analysis of Law: Legal Rules as Incentives

  Lewis A. Kornhauser

  By general agreement, the new economic analysis of law began with the near-simultaneous publication roughly 25 years ago of “The Problem of Social Cost” and “Some Thoughts on Risk Distribution and the Law of Torts”. Though no one doubts the subsequent flourishing of the endeavor, many question its significance, and most cannot articulate its fundamental challenge to more traditional understandings and analyses of law. Frequently, critics have considered fundamental to economic analysis of law the claim either that the law ought to be or was in fact efficient. Occasionally, critics have dismissed the endeavor as obfuscation through the introduction of a new technical jargon and formal mathematical techniques into the verbal tangle of the law. This essay offers a different interpretation of the challenge and contribution of the new economic analysis of law to legal studies. This new analysis elaborates an economic theory of how individuals (or “agents”) behave in response to legal rules. Sometimes this theory is developed explicitly; often, articles urging that some doctrine is or ought to be efficient rely implicitly on this economic theory of behavior. In every instance, this attention to the behavior of primary actors (as opposed to judges, legislators, or lawyers) constitutes a radical development in legal studies. While that development has matured, it promises further, dramatic changes in traditional legal understanding. Prior to the emergence of the new economic analysis of law, assumptions concerning the effects of legal rules on behavior were generally implicit rather than explicit, often ad hoc, occasionally inconsistent, and almost always “naive.” According to the tacit, naive theory that underlay, and continues to underlie, much discussion and debate of law, individuals conform their behavior to that required by the legal rule. Thus, under the naive theory, evaluation of a legal rule reduces to an inquiry of what society wants or requires. Economic analysis of law offers a more complex understanding of the effects of legal rules on behavior under which every agent will only rarely conform his/her conduct to that required by the legal rules. Thus, if one believes that the appraisal of legal rules requires evaluation of their consequences, this shift from the naive to the economic behavioral theory implies that our appraisal and understanding of legal rules must extend beyond a discussion of what is socially desirable or necessary to an effort to “see through” the legal rules to the behavior that they induce. An assumption of relentless and calculated pursuit of self-interest characterizes a theory of legally induced behavior as an economic theory. Economic analysis of law currently offers at least three distinct paradigms of the influence of legal rules on behavior. According to the economic analysis of legal duties, agents consider the consequences of violation of a legal rule in choosing their actions. The economic analysis of property rights argues that different distributions and bundling of entitlements will induce different behaviors. The public choice perspective focuses on the agents' attempts to determine the legal rules they face. In section 1, after outlining in somewhat more detail the contours of each of these three paradigms, I suggest that their varying emphases derive from different conceptions of law as directive or as nondirective. In section 2, the economic analysis of legal duties are considered in more detail. This section does not provide a comprehensive, or even haphazard, survey of the numerous analyses of legal rules and doctrine that the analysts have studied. Rather, it attempts to identify key features of the economic structure of analysis. The naive theory that agents will (generally) conform their behavior to that required by the legal rule rests on the idea that the legal rule itself provides a compelling reason for action. Despite the elaboration of the economic analyses of property rights and legal duties, legal scholars still resist the idea that these economic motivations can replace (or exhaust) the concept of law's normative force. Section 3 attempts both to make more precise the concept of normative force and to suggest how economic analysis of law might model those aspects of it that escape the current formulation of the economic theory. Section 4 offers some concluding remarks.

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  Autonomy in Law

  David A. J. Richards

  Autonomy is a core value in American public and private law, since it is one of the constitutive ingredients of the generative idea of background rights of the person to which interpretive controversy in American law characteristically appeals. In this essay, I first develop a general theoretical account of how and why autonomy in American constitutional law connects to a larger moral and political conception of self-governing agents, and then focus the account on two concrete interpretive debates in law: the scope of liability in the criminal law and the constitutional guarantees of the First Amendment. I build accordingly a conception of autonomy in the following stages: the minimally adequate internal capacities of agency required as threshold conditions for criminal responsibility, the external conditions of full criminal responsibility, and the richer framework of external conditions required by the guarantees of the First Amendment. The central focus of my argument is on the distinctive force of these latter guarantees.

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  Rights and Autonomy

  David A. J. Richards

  H. L. A. Hart has recently taken note of and applauded a discernible paradigm shift in political and legal theory from the “widely accepted old faith that some sort of utilitarianism . . . must capture the essence of political morality” to one of “basic human rights . . . , if only could find some sufficiently firm foundations for such rights.” Hart argues that recent exponents of this paradigm shift, whether associated with libertarian conservatism (Nozick) or the liberal welfare state (Dworkin), powerfully make their negative point against utilitarianism, but fail to lay adequate foundations for their constructive alternatives. Such theorists are, in the terms of Hart’s paper, “between utility and rights”: they have begun to develop the long overdue transition from one paradigm to another, but they are too much in thrall to the utilitarianism they reject clearly to justify a constructive alternative. In this essay, I take Hart’s argument as both premise of challenge to my own inquiry; his arguments, with characteristic brilliance and incision, reveal our needs for fundamental conceptual work in the concept of human rights in a spirit which puts behind it the obsession with the inadequacies of utilitarianism and freshly faces the taks of clarifying the deontological alternative. In order to do so, we must, in the spirit of the recent works of John Rawls and Alan Gewirth, articulate in defensible contemporary terms the perspective on human rights of its greatest classical philosophers, in particular, Rousseau and Kant. The idea of human rights represents a major departure in civilized moral thought. When Rousseau and Kant gave the idea its first articulate and profound theoretical statements, they defined a way of thinking about the moral attitude to personality that was, in ways I must explain, radically new. The practical political implications of this way of thinking are a matter of history. The idea of human rights was one among the central moral concepts in terms of which a number of great political revolutions conceived and justified their demands. Once introduced, the idea of human rights could not be cabined. In American institutional history, the idea of human rights lay behind the American innovation of judicial review: since human rights are not the just subject of political bargaining and compromise, countermajoritarian courts with the American power of judicial review are a natural institutional way to secure such rights from the incursions of the institutions based on majority rule. In our own time, the language and thought of human rights has been elaborated to articulate a number of social and economic rights (anticipated, strikingly, by Tom Paine), and has, in the international sphere, been the central moral idea in terms of which colonial independence and postcolonial interdependence have been conceived and discussed. An adequate theory of human rights would cast light on why the notion of human rights has naturally been put to such uses in the history of human institutions and how it should continue to be elaborated and extended. My aim in this essay is to clarify the human rights perspective (i.e., the underlying structure of the language and thought of human rights). I take this structure to include certain fundamental attitudes to human personality which find expression in the weight which considerations of human rights have in practical reasoning; often claims of such rights override other considerations, and sometimes they justify revolution, rebellion, and ultimate resistance. I characterize and explicate this structure in terms of the autonomy-based interpretation of treating persons as equals.

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  International Aspects of Biotechnology and Its Use in the Environment

  Richard B. Stewart

  Published as part of the Conference on the Environment(17th :1988 :Airlie House), sponsored by the Standing Committee on Environmental Law, American Bar Association.

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  Legislation and Moral Neutrality

  Jeremy Waldron

  In this paper, I want to discuss some aspects of the modem liberal theory of legislation and state action. In particular, I want to consider what I shall call ‘ the doctrine of liberal neutrality ’, expounded by philosophers like Ronald Dworkin, Bruce Ackerman, and Robert Nozick.1 But though I shall be concentrating on the suggestions that have been made in these recent writings (together with some rather less explicit arguments in John Rawls’s A Theory of Justice2), the themes that I shall be discussing have a rich heritage. The idea of neutrality is only the most recent attempt to articulate a position that liberals have occupied for centuries: the ancestry of the idea may be traced back through John Stuart Mill’s essay On Liberty and Immanuel Kant’s Metaphysical Elements of Justice at least as far as John Locke’s Letter Concerning Toleration and maybe even further.3 It is the latest expression of a view that liberals have always held about the attitude the state should take to the personal faith and beliefs of its citizens.