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Open Access Publications from the University of California

General Aspects of Law Seminar

INSTRUCTOR: Christopher Kutz
LOCATION: Faculty Lounge, Rm. 336 Boalt Hall
TIME: Thursday, 4:00 - 6:00 pm

All GALA sessions are scheduled from 4 to 6pm in the designated seminar room. Seminar papers will be pre-circulated and speakers will assume that they have been read in advance. Paper copies will be sent to those on the GALA mailing list; others interested in obtaining a paper copy should contact Amatullah Alaji-Sabrie at:; 642-3627. For further inquiries please contact Professor Christopher Kutz, and 642-6053.

Cover page of Justification and Alienation

Justification and Alienation


The paper argues that there is a hazard to avoid when offering a moral justification: the hazard of relying on what I call "extrinsic reasons." Extrinsic reasons count in favor of performing an action and yet are not reasons for which one can directly perform that action. They are rather reasons for acting upon oneself to make it the case that one performs the action of which they count in favor. Acting upon yourself in this way is the alienation of the paper's title. I argue that, when extrinsic reasons are relied upon in the justification offered by a moral theory, this form of alienation threatens the coherence of the agent. The upshot is that, in offering moral justifications, moral theory must be extremely attentive to the ordinary motivations of the actions it hopes to justify.

In addition to the 27 pages of main text, there are an additional 16 or so pages of appendix, providing an interpretation of Williams' criticisms of moral theories according to which those criticisms are continuous with the argument of the main text. (The appendix may provide some background for those unfamiliar with the discussion.)

Cover page of Laws of Cultural Cognition and the Cultural Cognition of Law

Laws of Cultural Cognition and the Cultural Cognition of Law


Can empirical data generate consensus about how to regulate firearms? If so, under what conditions? Previously, we presented evidence that individuals’ cultural worldviews explain their positions on gun control more powerfully than any other fact about them, including their race or gender, the type of community or region of the country they live in, and even their political ideology or party affiliation. On this basis, we inferred that culture is prior to facts in the gun debate: empirical data can be expected to persuade individuals to change their view on gun policies only after those individuals come to see those policies as compatible with their core cultural commitments. We now respond to critics. Canvassing the psychological literature, we identify the mechanisms that systematically induce individuals to conform their factual beliefs about guns to their culturally grounded moral evaluations of them. To illustrate the strength and practical implications of these dynamics, we develop a series of computer simulations, which show why public beliefs about the efficacy of gun control can be expected to remain highly polarized even in the face of compelling empirical evidence. Finally, we show that the contribution culture makes to cognition could potentially be harnessed to generate broad, cross-cultural consensus: if gun policies can be framed in terms that are expressively compatible with diverse cultural worldviews, the motivation to resist compelling empirical evidence will dissipate, and individuals of diverse cultural persuasions can be expected rapidly to converge in their beliefs about what policies are best. Constructing a new, expressively pluralistic idiom of gun control should therefore be the first priority of policy-makers and -analysts interested in promoting the adoption of sound gun policies.

Cover page of Beyond the Harm Principle

Beyond the Harm Principle


In On Liberty, just a few sentences after he introduces his famous "harm principle," John Stuart Mill writes "The only part of the conduct of anyone, for which he is answerable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his body and mind, the individual is sovereign." My aim is to argue that a commitment to individual sovereignty and a sphere of action in which you are answerable only to yourself requires that we abandon the harm principle.

The only way to unseat a time honoured principle is to provide a superior alternative. Following the sentence of Mill just quoted, I will call the alternative "the sovereignty principle." Liberalism is fundamentally a doctrine about the legitimate uses of state power, and the sovereignty principle articulates the basis for those limits in terms of ideas of individuality and independence. It provides a narrow rationale for the legitimate use of state power, and precludes other proposed bases. I explain why its conception of freedom is not subject to certain familiar objections, ones that have historically driven some to embrace the harm principle. Before doing so, I show that narrowly construed, the harm principle fails to account for a significant and familiar class of wrongs that most liberals would agree merit prohibition.

Cover page of Torture and Positive Law: Jurisprudence for the White House

Torture and Positive Law: Jurisprudence for the White House


Revelations of ill-treatment of prisoners by American forces at Abu Ghraib and the publication of memoranda showing that Bush administration lawyers have been seeking to narrow the application of the Convention against Torture and other similar provisions – these developments make it necessary for us to think afresh about the character and significance of the various legal prohibitions on torture. This paper argues that the prohibition on torture is not just one rule among others, but a legal archetype – a rule which is emblematic of our larger commitment to break the link between law and brutality. Characterizing the prohibition as a legal archetype affects how we think about the implications of authorizing torture (or interrogation methods that come close to torture); it affects how we think about issues of definition in regard to torture; and it affects how we think about the fragility and contingency of the provisions of positive law that stand between us and barbarism.

Cover page of The Constitutionalization of Democratic Politics

The Constitutionalization of Democratic Politics


In the last generation, the American Supreme Court has constitutionalized an increasing number of issues concerning the structure of elections and the design of democratic governance institutions. Similar developments are emerging in the courts of other countries. This Foreword critiques the current premises and methodology that underlie this emerging new domain of constitutional law. The Foreword offers an alternative, functional foundation for judicial review of democratic politics in which the central task should be ensuring that political processes are appropriately competitive and in which conventional understandings of individual rights, associational rights, and political equality should play a diminished role. The Foreword then applies these ideas to several central, recent constitutional issues concerning the structure of democracy: the design of election districts, the issue of groups and political representation, the legal regulation of political parties, and the financing of elections.