Thursday, April 20, 2006

Does philosophy deserve a place at the US Supreme Court?

"Does Philosophy Deserve a Place at the Supreme Court?"

http://ssrn.com/abstract=881521

This Comment demonstrates that policy judgements are not masked by philosophical references, nor do philosophers play any crucial role in contentious judicial decisions. Neomi Rao’s study is flawed for many reasons: incomplete content analysis, poor assessment of data, and an inadequate definition of philosophy. She should be criticised for hypocritically praising Court philosopher references in some instances and not others, especially with regard to the Court’s early development. This Comment searched unsuccessfully for an instance where philosophers were cited just once in controversial cases regarding racial integration, capital punishment’s abolition and re-legality, and the 2000 Presidential election. Philosophers are peculiarly absent from major controversial cases. Rao claims the Court’s majority decisions avoided the “Philosophers’ Brief” because the philosophers’ argument was grounded in theory, not substantive legal argument surrounding issues of judicial precedent. This Comment challenges Rao’s use of “philosophy” as something entirely abstract and steeped in metaphysics. Philosophy is presented as a large umbrella covering diverse sub-fields, two of which are philosophy of law and political philosophy. These sub-fields are of great use to law. Thus, the Court has not illegitimately used philosophers to support personal policy preferences. Nor is the use of philosophy incommensurable with judicial decision-making.

This originally appeared in the Rutgers Law Record, Vol. 27, No. 1, 2003

One of the most surprising things about Rao's original article is that it has been used several times by more conservative lawyers to make "the case" for keeping philosophers out of judicial decisions. However, my claim is that they are truly grasping at straws: not only do Plato and friends count for nothing in the legal decisions they don't like --- thinking now particularly of Row v Wade --- but their arguments simply don't hold up to scrutiny, as I demonstrate at some length. Better to claim the opponent won for the wrong "reasons" (e.g., using Plato's Republic) than overlook the fact the opponent's decision actually respects judicial precedent as that record is recorded --- with all of its attendant peculiarities --- than one's own view, I suppose.........

Comments are open!

Wednesday, April 19, 2006

Is Hegel a retributivist?

"Is Hegel a Retributivist?"

http://ssrn.com/abstract=869534

Originally published in the Bulletin of the Hegel Society of Great Britain, Vol. 49/50, pp. 113-26, 2004

The most widespread interpretation of Hegel’s theory of punishment is that it is retributivist, as the criminal punished is demonstrated to be deserving of a punishment commensurable in value to the severity of his crime. Thus, Hegel’s theory is individualistic because the only factor involved in determining a punishment’s magnitude is the criminal’s action itself. The problem with this interpretation is that it is limited to Hegel’s preliminary discussion of punishment within his theory of abstract right. In this paper, I take seriously the structure of the Philosophy of Right to underscore the relationship between Hegel’s treatment of punishment in abstract right and his later treatment within his theory of civil society. This reading produces substantive new insights, presenting us with a theory which determines the severity of punishments commensurable with the threat a criminal act poses for civil society.

Tuesday, April 18, 2006

Plato, Hegel, and Democracy

"Plato, Hegel, and Democracy"

http://ssrn.com/abstract=869540

Nearly every major philosophy, from Plato to Hegel and beyond, has argued that democracy is an inferior form of government, at best. Yet, virtually every contemporary political philosophy working today - whether in an analytic or postmodern tradition - endorses democracy in one variety or another. Should we conclude then that the traditional canon is meaningless for helping us theorize about a just state? In this paper, I will take up the criticisms and positive proposals of two such canonical figures in political philosophy: Plato and Hegel. At first glance, each is rather disdainful, if not outright hostile, to democracy. This is also how both have been represented traditionally. However, if we look behind the reasons for their rejection of (Athenian) democracy and the reasons behind their alternatives to democracy, I believe we can uncover a new theory of government that does two things. First, it maps onto the so-called Schumpeterian tradition of elite theories of democracy quite well. Second, perhaps surprisingly, it actually provides an improved justification for democratic government as we practice it today than rival theories of democracy. Thus, not only are Plato and Hegel not enemies of modern democratic thought after all, but each is actually quite useful for helping us develop democratic theory in a positive, not negative, manner.

This paper will be published in a future of the Bulletin of the Hegel Society of Great Britain.

Thursday, April 13, 2006

Welcome to the Brooks Blog!

This forum will serve as a guide to my research activities.

UPDATE: The blog's focus has been revised to address my interests in ethics, politics, and public policy rather than only my current research [20 September 2010].