On Legal History
Dignity Jurisprudence: Building a New Law on Earth
in The Dignity Jurisprudence of the Constitutional Court of South Africa (2022)
in The Encyclopedia of Political Thought (2015)
Justice is the virtue of acting rightly and prop- erly with regard to others (political justice) and with regard to oneself (moral justice). Justice is also understood as the good, the appropriate, or what is right in a given situation. Rhadamanthus, the Greek judge of the dead, meted out justice according to the maxim: “Suffer what you have done.” The Roman jurist Ulpian writes: “Justice is the constant and perpetual will to render to each man his due.” The Golden Rule holds: Do unto others as you would have them do unto you. What these examples of folk wisdom share is the sense that justice is about proportionality and also singularity. The claim that justice is “to give to each his/ her own” expresses the aspiration for justice as equity. Because no two persons or circum- stances are the same, laws that treat everyone equally are, as Plato argued in the Statesman, stubborn and stupid. It is better, Plato con- cludes, to be governed by a wise philosopher- king than by rigid laws. Plato’s greatest student, Aristotle, agrees that there will always arise new cases for which the application of the law will be unjust. But his solution is not to discard law in favor of a philosopher-king, but to allow wise judges to straighten the defects in law. It is just, Aristotle writes in the Nichomachean Ethics (NE), to rectify the defect in law by deciding as the lawgiver would himself decide if he were present. This rectification of law, or equity, is one fundamental aspiration of justice: to do what is fitting in each particular instance.
The Angry Jew: Hannah Arendt on Revenge and Reconciliation
in Philosophical Topics (2011)
Sholom Schwartzbard killed Simon Petlura in an act of revenge. He admitted his crime and a French jury acquitted him in 1927. For Hannah Arendt, Schwartzbard’s actions show that revenge can, in certain circumstances, be in the service of justice. This paper explores Hannah Arendt’s distinction between reconciliation and revenge and argues that Hannah Arendt embraces revenge as one way in which politics and justice can happen in the world, but only under certain conditions. First, Arendt only endorses revenge when the crime calling forth vengeance is extraordinary, one that bursts the bounds of traditional legality. Second, the avenger must give himself up for judgment to the legal system, asking a jury to judge whether his extraordinary act was just even though it was illegal. These are strict conditions and will only rarely be met. When they are, revenge can be a profoundly political act in the service of justice, one that can restore a broken political order.
From Justice to Justification: An Alternative Genealogy of Positive Law
in University of California, Irvine, Law Review v. 1.3 (2011)
Revolutionary Constitutionalism: Some Thoughts on Laurie Ackermann's Dignity Jurisprudence
in Acta Juridica (2008). Reprinted in Dignity, Freedom and the Post-Apartheid Legal Order, ed. by Alfred Barnard (Jutta, 2009).
The Judge as Tragic Hero: An Arendtian Critique of Judging
in HannahArendt.net, Articles/Research Notes v.4 (2008). Revised version, originally published in The Graduate Review (cont. as Critical Sense) v. 1, #1 (1994).
Revolutionary Constitutionalism: Arendtian Thoughts on Freedom and Constitutionalism
in Acta Juridica (2008)
Beginning with an inquiry into South African Constitutional Court Justice Laurie Ackerman's development of a revolutionary dignity jurisprudence, this paper seeks to develop Arendt's own understanding of revolutionary jurisprudence through a reading of her book "On Revolution." The paper pays close attention to Arendt's understanding of the "spirit of revolution" as both the "act of foundation" and "the experience" of revolution; it also explores her account of the revolutionary council and ward systems. Most importantly, the paper argues that Arendt develops a unique understanding of the American Constitution and the American Supreme Court as spaces of freedom within the American political system.
Democratic Legitimacy and the Scientific Foundation of Modern Law
in Theoretical Inquiries in Law, v. 8.1 (2006)
Disorderly Differences: Recognition, Accommodation, and American Law
in Law and Religion, ed. Gad Barzilai (Ashgate, 2006). Originally published in Yale J. of Law and Humanities (June 1994).
The Encyclopedia of Truth
in Law, Culture, and the Humanities, v. 2, #1 (2006). Review of Rainer Maria Kiesow's The Alphabet of Law.
Friedrich Nietzsche, the Code of Manu, and the Art of Legislation
in New Nietzsche Studies v. 6 (2006). Expanded version, originally published in Cardozo Law Rev. v. 24 (2003).
The Accusers: Law, Justice, and the Image of Prosecutors in Hollywood
in Griffith Faculty Law Review v. 13, #2 (2005)
Harsh Justice
in Law, Culture, and the Humanities, v. 1, #1 (2005). Review of James Whitman's Harsh Justice.
The Spring of Law: Some Thoughts Inspired by Nietzsche's Doctrine of the Sittlichkeit der Sitte
in Rechtsgeschichte v. 6 (2005)
The Gift of Science: Leibniz and the Modern Legal Tradition
Harvard University Press (2005); Law Press (2010). Chinese language edition; Fordham University Press (2010).
"The front pages of our newspapers and the lead stories on the evening news bear witness to the divorce of law from justice. The rich and famous get away with murder; Fortune 500 corporations operate sweatshops with impunity; blue-chip energy companies that spoil the environment and sicken communities face mere fines that don't dent profits. In The Gift of Science, a bold, revisionist account of 300 years of jurisprudence, Roger Berkowitz looks beyond these headlines to explore the historical and philosophical roots of our current legal and ethical crisis. Moving from the scientific revolution to the 19th century rise of legal codes, Berkowitz tells the story of how lawyers and philosophers invented legal science to preserve law's claim to moral authority. The "gift" of science, however, proved bittersweet. Instead of strengthening the bond between law and justice, the subordination of law to science transformed law from an ethical order into a tool for social and economic ends. Drawing on major figures from the traditions of law, philosophy, and history, The Gift of Science is not only a mesmerizing and original intellectual history of law; it shows how modern law remains imprisoned by a failed scientific metaphysics. This provocative, wide-ranging book combines rigorous scholarship with interdisciplinary scope. As a work of intellectual history, it traces modern thinking about law as "positive law" back to its original impulse in Gottfried Wilhelm Leibniz's scientific metaphysics. In doing so, "The Gift of Science" presents an original discussion of the importance of Leibniz's largely unknown legal writings. As a work of legal history, the book tells the story of the rise of legal science and legal codes in Germany, giving special attention to the first modern legal code, the Prussian code of 1794, and the great jurist Friedrich Carl von Savigny. As a contribution to the history of science, "The Gift of Science" shows how Leibniz's scientific philosophy influences - and is influenced by - his legal thinking. And as a work of jurisprudence, "The Gift of Science" engages contemporary debates about positive law, arguing that the essential characteristic of positive law is its need for scientific justification. Finally, the book makes manifest the danger that the transformation of law itself into a product of science poses for the possibility of law, justice, and freedom in the modern age."
History and the Noble Art of Lying
in Rechtsgeschichte v. 4 (2004)
The Aristocratic Way of Punishment
in Rechtsgeschichte v. 4 (2004)
The paper examines the concept of punishment as articulated by James Whitman, highlighting the inherent degradation involved in the act of punishment and its implications for social status. It suggests that while punishment aims to correct behavior through chastisement, it risks devolving into sadism, particularly in cases like the U.S. occupation of Iraq, where the distinction between warden and punisher can blur. The analysis draws parallels with the historical context of Germany's self-understanding post-Weimar, although it shifts from a focus on punishment to a broader discourse about historical trauma and identity.
Error-Centricity, Habeas Corpus, and the Rule of Law as the Law of Rules
in Louisiana Law Review v. 64 (2004)
Law, Justice, and the Transformation of the Prosecutorial Ethic
in Rechtssysteme im Vergleich: Die Staatsanwaltschaft, ed. Dieter Simon, et al. (2004)
Als ein recht fruchtbares Terrain fur die komparative Sicht auf das kontinentale und das anglo-amerikanische Rechtssystem hat sich das Thema Staatsanwaltschaft erwiesen, mit dem die Arbeitsgruppen des Max-Planck-Instituts fur europaische Rechtsgeschichte und der rechtshistorischen Universitatsinstitute von Berkeley, Mailand und Montpellier ihre Zusammenarbeit fortsetzten.
in Rechtshistorisches Journal (2001)
Nicht ohne Grund sind daher fast alle der hier kurz besprochenen Arbeiten zur Geschichte der Anwaltschaft von Historikern und nicht von Rechtshistorikern verfasst wor-den; die einzige Ausnahme bildet insoweit The Third University of England von JOHN H. BAKER.
'Not Guilty' — Millennial Speculations on Legal Defense from Queen Fredegond to Bill Clinton
in Advocatus Defensorum, ed. Dieter Simon, et al. (2000)
Some Prefatory Remarks on Positive Law (Gesetz)
in Rechtshistorisches Journal, v. 19 (2000). Review of A. Sebok's Legal Positivism in American Jurisprudence.
Truth and Error: Legal Error and the Uniquely American Doctrine of Habeas Corpus
in Error Iudicis. Juristische Wahrheit und justizieller Irrtum, ed. A. Gouron, et al. (1998)
Disorderly Differences: Recognition, Accommodation, and American Law
in Yale Journal of Law & the Humanities (1996)
In January 1992, People magazine ran a story entitled "Die, My Daughter, Die!"' describing the murder of sixteen-year-old Tina Isa, the daughter of Zein and Maria Isa, Palestinians who emigrated with their seven children to the United States from the West Bank in 1985. Opposite a half-page photo of Zein in a bloodstained sweater, the People article explained that he had hoped to arrange a marriage for Tina, as he had for her three older sisters. He wanted Tina to return to his native village and marry a relative of one of his sons-in-law. Tina resented and resisted her father's plans concerning her marriage and defied the strict, traditional values of her parents by taking a job and dating an African-American schoolmate. As a result, Tina and her father had frequent fights during which he warned her about her "offensive" behavior (e.g., allowing herself to be seen in public with her boyfriend) and threatened to vindicate the family's damaged honor. On the night of Tina's death, Zein again confronted her and accused her of shaming the family by virtue of her allegedly promiscuous behavior. Then, while Tina's mother held her down, Zein stabbed Tina to death with a seven-inch knife. Charged with first-degree murder, the Isas presented a "cultural defense." They claimed that they should not be found guilty since what they did to Tina would not have been treated as a serious crime in their homeland. They maintained that they were obeying the law as they (and Tina) knew and understood it, and that Tina's disobedience called for her punishment. The Isas' cultural defense failed, as it generally does, and they were each convicted of first-degree murder and sentenced to death.
in Europaische und Amerikanische Richterbilder, ed. A. Gouron, et al. (1996)
in Rechtshistorisches Journal, Volume 14, 1995. Review of Questions of Evidence, ed. J. Chandler, A. Davidson and H. Harootunian.
Community and Difference: The Political Theory of Legal Pluralism
(1990)
Unpublished manuscript on file at Amherst College.