Academic

New in the Oxford Journal of Legal Studies

By Lawrence Solum

The most recent issue of the Oxford Journal of Legal Studies is available online.  The articles include:

An Eye for an Eye: Proportionality as a Moral Principle of Punishment by Morris J. Fish

The lex talionis of the Old Testament has been widely perceived?understandably, but mistakenly?as a barbaric law of retribution in kind. It is better understood as a seminal expression of restraint and proportionality as moral principles of punishment. This has been recognized from the earliest times. Over the intervening centuries, the lex talionis has lost neither its moral significance nor its penal relevance. This is reflected in H.L.A. Hart's synthesis of modern retributivist and utilitarian theories of punishment and, again, in contemporary Canadian law through the recognition of proportionality as the fundamental principle of sentencing under the Criminal Code. The tension between this fundamental principle and Canada's increasing resort to mandatory minimum sentences of imprisonment is examined briefly in this light.

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes by Michael Steven Green

In an article entitled ?Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us about the Law?, I argued that in Law's Empire Ronald Dworkin misderived his interpretive theory of law from an implicit interpretive theory of meaning, thereby committing ?Dworkin's fallacy?. In his recent book, Justice in Robes, Dworkin denies that he committed the fallacy. As evidence he points to the fact that he considered three theories of law??conventionalism?, ?pragmatism? and ?law as integrity??in Law's Empire. Only the last of these is interpretive, but each, he argues, is compatible with his interpretive theory of meaning, which he describes as the view that ?the doctrinal concept of law is an interpretive concept?. In this Reply, I argue that Dworkin's argument that he does not commit Dworkin's fallacy is itself an example of the fallacy and that Dworkin's fallacy pervades Justice in Robes just as much as it did Law's Empire. 

Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review by Adrienne Stone

This article addresses an issue overlooked in most of the literature on judicial review: the legitimacy of judicial review of a constitution's federal and structural provisions. Debates about the legitimacy of judicial review?at least as conducted throughout the Commonwealth?are usually focussed on rights. These debates appear to assume that the power of courts like the Australian High Court and the Canadian Supreme Court to interpret and enforce federal and structural provisions is unproblematic. This article tests that assumption and concludes that those who hold democracy-based objections to constitutional rights should seriously reconsider, and perhaps oppose, federal and structural judicial review as well.

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Full post as published by Legal Theory Blog on March 21, 2008 (boomark / email).