SSRN: I'm sort of new to all this, but David Fontana, a colleague of mine from Virginia and Oxford, has posted two interesting papers.

Refined Comparativism in Constitutional Law. From the abstract:
This Article lays out a "refined comparativist" approach, whereby a court would consider comparative constitutional law only when faced with a "hard case," the comparative constitutional law can add something distinctive to American constitutional interpretation, and the contextual differences between the United States and the country the American court is considering borrowing from are slight. This Article then defends this refined comparativist model, paying particular attention to several strands of contemporary constitutional scholarship, before applying refined comparativism to address the constitutionality of hate speech.
A Case for the Twenty-First Century Constitutional Canon: Schneiderman v. United States. From the abstract:
Schneiderman raises a variety of issues related to disparate subjects, such as the role of courts during wartime, the place of the Constitution in the American "civil religion," constitutional limitations on immigration regulation, and so on. Because this case discusses all of these issues (and had a major impact on the evolution of some of these issues), it is a case of substantial importance and interest that has belonged in the constitutional canon for some time.

I'll have more to say about all this--including the very interesting topic of comparative constitutionalism--when exams are over. Until then, blogging is a study break.

Dean Scott and Contract Theory: Solum has posted a link to a forthcoming article from Scott and Schwartz. I haven't had a chance to read it yet, but I'm very much looking forward to doing so when my exams are finished. Solum's comments are extensive, and it'll be nice to go back to them as well. As an aside, I had the privilege of taking contracts from Dean Scott last semester. I'm not exaggerating when I say that he's the best teacher I've ever had. When Unlearned Hand emerges from finals, I'll have to ask him whether he agrees. We were fortunate enough to learn from Scott in the same section. Much more after exams!


Sabl responds: Andrew sent the following message today. In it, he answers various criticisms of his article on Cohen's critique of Rawls, a summary of which is posted below. Here's Andrew's message:

First, I would like to thank Micah for hosting this comment. I'm not a blogger myself, and rely on his generous donations of space.
As someone unused to the blogosphere, I'm afraid that my comments here will be taken as more definitive than they are. Once again, I stand by the print version of my article (Society March/April 2002, 78-85) and am happy to send (a few!) copies out to those who can't easily get it.
Jacob Levy's superb post on the difference between political theory and political philosophy helps illuminate some of the clashes between my post and the responses to it. But I also have some more specific responses Tom Runnacles' and Chris Bertram's excellent and provocative comments.
Both Runnacles and Bertram rightly focus on my horror of indoctrination, and both ask rhetorically whether it's wrong for a society to teach children not to steal. No, that's not wrong. But we shouldn't draw the general lesson that every time we think something required by justice we should recommend adopting it as a social norm at the cost of indoctrination. For one thing, stealing is an easy case because even if everyone disagrees on the legitimacy of where the property came from, almost any predictable system of property beats universal theft as a social rule.
But this isn't the proper analogy anyway. Cohen, remember, wants people not just to obey social rules—egalitarian ones—but to internalize them as guides to private conduct and even private motivations, and internalize them because they have accepted the requirement to attune their private motivations and beliefs to a certain set of public arguments that have come up with reasons why they are morally required. If we taught in schools, and tried to make a postulate of public debate, a given doctrine of property—Locke's, say, or even Hume's—and anyone who didn't believe it in his or her heart of hearts were attacked as antisocial, this way of making sure people got the message "don't steal" would be deeply illiberal.
Runnacles is right to say that Stockholm, London and Los Angeles differ in their level of egalitarianism without any being conformist in the ways I fear a society based on a Cohen-style ethos would be. (Or maybe. The link between Scandinavian social democracy and an assumption of cultural uniformity may be no accident.) But he's wrong to say that these cities "differ very considerably with respect to the extent to which the ethos Cohen favours obtains." It actually obtains at a level of zero everywhere. Nobody anywhere thinks that the only life he or she can morally live is the kind that could be justified in a society- (world?-) wide moral argument about which economic motivations he or she gets to have. People in Sweden and Britain are allowed to have different, or idiosyncratic, reasons for being egalitarians. They’re even allowed to be Thatcherites, or Swedes who vote for the bourgeois parties—remember them?—without being treated as thieves or murderers. People in these places avoid conformism because they don't live by Cohen's demands that one’s private motivations and psychic states be justified to others.
Even so, they can tend to become conformist: I hear, from a recent article by Martha Nussbaum in Ethics, that Norway once seriously considered outlawing private schools as dangers to a common social-democratic ethos. Echoes of Pierce v. Society of Sisters here!
Runnacles questions whether fraternity is in conflict with individuality:
Pursuing different ends, exhibiting contrasting personal styles, such individuals [with fraternal feelings that limit their willingness to insist on the marginal product their labor could command] may regard their solidaristic practices precisely as providing assistance by virtue of which their less-favoured compatriots are able to pursue their own distinctive paths through life by their own lights.
To this I would say, yes, they may. But they also may not. And they should not be expected to—especially if they have other reasons for being egalitarians, say noblesse oblige or bohemian disregard of both wealth and normal people, that would offend a doctrinaire proponent of fraternity but would leave their actions looking exactly the same.
So I stand by my statement that individuality is compatible with egalitarianism but not with fraternity. I oppose only the latter.
Both Runnacles and Bertram wonder if my quarrel isn't with Rawls rather than Cohen. If Cohen is right that being a Rawlsian entails "more radical views about what a just society would look like than is generally supposed" (writes Runnacles), then I'm merely rejecting both Rawls and Cohen. Well, sort of. As the full article version makes much clearer than my post, I think that late Rawls rightly jettisoned some dubious ideals that early Rawls endorsed: precisely the stuff about "fraternity" and "social unity" (and the difference principle as the embodiment of both) that Bertram cites as evidence that my argument implicates Rawls. All of those ideals are essentially incompatible with individualism. "Political" liberalism, which sees the rules of justice as expressing an overlapping consensus rather than a coherent and rationally required moral system, is not.
Runnacles claims, "A theory of justice which does not prescribe the inculcation of its own principles is in very strange shape indeed." Why so? One can believe X to be true and still think it would be a terrible thing if everyone were required to believe X under pain of social ostracism. This distinction is, of course, one way of explaining the essence of toleration. Possible reasons for making it include not only (1) my own determined individualism—which I'll admit is always and everywhere a minority taste and not a durable basis for any society—but also (2) an old-fashioned mild skepticism, or (3) what late-Rawls calls an acknowledgment of the "burdens of judgment" (which looks to me, despite his protests, like another kind of mild skepticism—but never mind).
In any case, the distinction is what late Rawls, with his stress on reasonable pluralism, admitted—and many fans of early Rawls, who see him (perhaps rightly, back then) as an advocate of a single society-wide egalitarian ethos, cannot accept. To the extent that Cohen radicalizes early Rawls and ignores late Rawls, he follows a hoary Marxian tradition of regarding as an enemy the plurality of moral systems that liberal toleration both learns from and promotes.


Political theory and political philosophy: as promised, Jacob Levy has some comments on the difference between them and what causes it.

Update: Russell Arben Fox comments on Levy here. I hope to have something to say about this eventually, but it'll have to wait a little while.
Update (2): Then again, maybe I won't have anything more to say. I don't have much to add to what Tom Runnacles says about learning analytic moral and political philosophy in Oxford. Though I will say that you'd probably have a slightly different perspective if you studied politics or political philosophy with people like Mark Philp, Larry Siedentop, Michael Rosen, Stephen Mulhall, Michael Freeden, or Elizabeth Frazer.
Update (3): Larry Solum has a nice round-up of links related to this topic, available here.


Blogging hiatus: with exams around the corner, I probably won't be blogging much--if at all--over the next two weeks. Hope to be back as soon as possible.


Solum's second post on Rawls is available here. The argument is unfolding.


Apology to "non-Rawls" readers: most of what I've posted over the last week or so is related to the debate over Rawls. I know that this debate is somewhat esoteric and that not everyone can, or even wants, to follow it. For those who are interested but not immersed in this stuff, I can only recommend some readings that will help make the major arguments clear. For those who aren't interested, I'll try to keep posting on issues of more general appeal. Of course, the name of the blog is Political Theory, so, after all that stuff about think-tanks, I'm happy to be on topic. But whether you're more interested in the politics or the theory, I hope you'll keep reading!

Larry Solum defends Rawls in the first of a series of posts. He starts with an intriguing proposal:

Let us put the question posed by Cohen to Rawls i[n] a special session of the Original Position. That is, let's suppose that the representatives have already selected the two principles, and now they must choose whether the principles shall apply to the basic structure--call this the basic structure version of the two principles (for short, the basic structure version)--or whether they should select a variation in which the two principles apply to individual life plans--call this the comprehensive version of the two principles (for short, the comprehensive version. Which version would be selected by the representative of citizens with the two moral powers behind the veil of ignorance?

Larry promises to answer this question in later posts. I think this puts Larry in the position of someone giving a series of lectures over four or five days. On Day One, the lecturer has a clear view of what he wants to say. But after the question and answer session, he has to make some adjustments here and there. On Day Two, the adjustments are presented in the course of delivering the new material. But in the mean time, the audience has had some time to think about things--and the second round of Q&A is much more pointed. The lecture on Day Three is already evolving, and, by Day Four, the original lecture is scrapped in favor a response to the critics. Then again, maybe Larry will confound us all. As you'll see below, I wish him the best of luck!

In that spirit, let me mention a single concern about the way Larry has framed the central issues. The original position does not have a unique subject. It's a heuristic that can be used to model all kinds of principles and institutions. Larry wants us to use it for the purpose of determining whether people who are rational (and reasonable by virtue of being placed within the original position)--or, put otherwise, whether citizens who have the two moral powers (read: the capacity to pursue a conception of the good and the capacity for an effective sense of justice)--would choose to apply Rawls's two principles of justice to their own life plans. Note, here, that Cohen's critique doesn't say anything about applying Rawls's first (equal basic liberties) principle to individual life plans. It's not obvious how that would work, but the prerogatives argument might be seen as an attempt to incorporate liberty concerns into Cohen's argument for an egalitarian social ethos. But this isn't my main concern. The concern that I have about Solum's framing is this: the parties in the special session of the Original Position have already chosen the two principles of justice to regulate the basic structure of society. But Cohen would no doubt reply that this begs the question about the proper subject of justice--or, as he says, about "where the action is." How do the parties in the Original Position know which practices make up the basic structure? And even if they are able to draw a line identifying which practices are in or out, what is the justification for that line? I think this is a difficult question. The best answer, to date, is still Andrew Williams' article "Incentives, Inequality and Publicity," Philosophy & Public Affairs (1998). Williams explicates the idea of the basic structure in terms of institutions governed by public norms. I think Larry is going to have to say something similar about the nature of the basic structure. Otherwise, he's going to have a hard time persuading those who agree with Cohen that he's framed the argument in a way that doesn't already assume all the answers.

Larry is thinking carefully about this issue, and he's taken some time to pull apart a possible defense of Cohen that I suggested below. To be clear, I haven't endorsed that defense--mainly because I'm not convinced that the position it's supposed to defend is correct. What I do think is that Cohen's challenge is very serious, and that Rawlsians have a lot of work to do in responding to it. I re-stated the argument from prerogatives because I think it's the sort of argument Cohen might use to answer someone who claims that his view is too demanding. Of course, there might be other, more compelling arguments against Cohen's critique. I don't think I've said anything to rule out that possibility.

I haven't responded here directly to Larry's argument against "my" prerogatives challenge. That's in part because I'm generally sympathetic to Larry's claim that considerations presented most forcefully in Political Liberalism counsel against applying conceptions of justice to comprehensive conceptions of the good. But I know that this will only make the debate even more expansive. Up to this point, Cohen's critique of Rawls is aimed at A Theory of Justice. He hasn't widened the argument yet to encompass claims derived from Political Liberalism. Maybe that's where Rawlsians will want to make their stand. Perhaps Cohen's conception of justice doesn't meet the appropriate test of legitimacy for a society marked by the fact of reasonable disagreement. Indeed, one might accept a liberal conception of legitimacy and still believe that all of the conceptions of justice that satisfy it are merely second-best. I suppose Cohen could say something along these lines. But I doubt this would satisfy him.

I realize that these remarks are all rather loose. I hope that readers will take them merely as the most tentative of suggestions--and not as my considered views about some very difficult problems in Rawls's political philosophy. I haven't figured out what I think about many of the issues under discussion here. But I do think that they are weighty issues, and certainly worthy of the time that's been devoted to them. I'm looking forward to reading Larry's future posts.


Recruiting for Hart: Ezra Klein has become Director for Student Operations in California for Gary Hart's presidential campaign. Ezra is recruiting students to staff two offices in California, but he also has information about internships in other locations. If you're at all interested, check out his letter here.


Rawls and Nozick: if you're unfamiliar with the works of these great philosophers, you can learn something about their ideas--and their temperaments--from a couple of links have been circulating the last couple days. I thought I would post them here just in case anyone missed them. David Estlund had a wonderful tribute to Rawls in the current issue of Dissent. Julian Sanchez's interview with Nozick is available here.

Comments on Sabl's argument by Jacob Levy at Volokh, Russell Arben Fox, and Matthew Yglesias.

Update: Chris Betram weighs in on Sabl's critique of Cohen, and Jacob Levy promises more.
Another update: Tom Runnacles has a lengthy and thoughtful reply to Sabl. Thanks so much to all those who've taken the time to keep with this discussion!


"If You're Such a Liberal, How Come You Love Conformity?" is the title of a recent article by Andrew Sabl that takes the debate about Cohen's critique of Rawls in a new direction. In an earlier post, I said that this debate is really just getting started. One of the consequences of Cohen's critique will be a discussion among liberal egalitarians about their own fundamental moral and philosophical commitments. Sabl's review gets that discussion off to a provocative start. Unfortunately, the review is on-line, here, only for a fee—although many university libraries will probably subscribe to either the print or the online version. I asked Sabl whether he might be willing to put something on-line. He was very gracious to write a rough summary of his argument for the purpose of participating in the discussion that has been taking place among various bloggers. For a review of recent posts, see Solum's redux. The full details of Sabl's argument are only found in the published version: Andrew Sabl, “Review Essay” on Cohen’s If You're Such An Egalitarian, How Come You're So Rich?,” Society 39, No. 3 (March/April 2002): 78-85. As you'll see, this post is a bit longer than my normal comments on this blog. But I set this page up to discuss political theory, and I think Sabl's contribution is definitely worth reading. What follows obviously assumes some familiarity with Cohen's criticisms. Sabl writes:

Cohen's arguments are ad hominem, but he misunderstands homo liberalis. The points he thinks will dig deep into liberals' souls will only worry those who've tried to create so much common ground between liberals and neo-Marxists that they've forgotten what liberalism means: individualism, pluralism, a society where all may live as free as possible from excessive social demands.
Cohen's argument rightly shows that those who aspire to certain ideals of justificatory community and social fraternity, and who hope that citizens' deepest motivations will line up "unambivalently" with their public principles, must reject a society based on incentives and hope for a moral transformation that will render incentives unnecessary. But liberals should reject the premises: Cohen's vision of justificatory community is too demanding, his ideal of fraternity is the opposite of individualism, and ambivalence and a bit of unpredictability are what liberalism is all about.
The ideal of community Cohen takes as a starting point is, he notes in a footnote, the kind of community he talks about in his 1992 Tanner Lecture, "Incentives, Inequality, and Community" (in Tanner Lectures on Human Values, Vol. 13, Univ. of Utah Press, 1992). This is not a concrete social or political community, real or aspirational, but a rationalist, "justificatory community" where people seek to "make policy together." This vision of community leads to demands for justification that are very broad—we must justify not just new proposals or ongoing collective institutions and practices but everything we do or refrain from doing—and very deep—we must justify not only our actions and choices but our inner states.
Both the breadth and depth do a lot of work, and both may be questioned. Only the breadth lets Cohen make one of his most vivid, and central, comparisons: a talented citizen who won't work without incentives is like a kidnapper who explains that without a big ransom he will have no alternative but to keep the abducted child. (There's another, similar example involving Russian generals who say that only Lithuanian submission will prevented their own invasion, which they otherwise "predict.") These examples are, of course, coercive: the kidnapper has used coercion to force a relationship of threat with a desperate family in order to extort money. But there is no reason to regard such coercive relationships as analogous to typical relationships in liberal society. Ordinary members of a liberal society, in their private relationships, are not forcing others to cooperate with them and are therefore less obligated than kidnappers (as would seem obvious) to justify the terms on which they might choose to cooperate with others. Of course, Marxists think that capitalist relationships are inherently coercive and little different from crime. But that's precisely where liberals disagree: Cohen is begging the question.
What I've called "depth" is even more demanding and more dubious. Cohen envisions in place of incentives (explicitly drawing an analogy between such a secular conversion and Christian hopes for new societies) a mass conversion to a new social ethos, one that would change not just institutions or even moral norms but the personal motivations existing throughout society. He breezily mentions "a socialization process that instills egalitarian principles in the young" ("Incentives," 290) as something such a society would feel obligated to establish.
But surely one thing liberalism means is a deliberate refusal to aspire to such mass conversions and mass indoctrination. To be liberal is to value a diversity of behaviors, motivations, and human characters, often judging some better and some worse but deliberately fighting the temptation to buy moral reform at the cost of uniformity. Respect for others entails restraining oneself from judging the state of others' souls, or at least from claiming the authority to change them. The conversion Cohen longs for would be not only hard to achieve, and undesirable to impose by force (both of which Cohen admits), but undesirable if it were achieved. It would make people too much the same, and too ready to judge others. A liberal society cannot be a society of noodges, and a society of noodges should not appeal to liberals.
There's a distinctive, liberal view of agency that's quite different from Cohen's. Cohen thinks that we're most distinctively agents when least alienated from ourselves—when the principles that govern one part of our lives govern all. (With reason, he cites on the subject Marx's On the Jewish Question.) But liberals have always valued a certain departure from this kind of rational agency in favor of a different kind of agency: one based on individuality, a diversity of character and personal aspirations that could not survive regular social examination of all our quirks to check them for consistency with our actual or attributed moral principles. Liberals think that this kind of agency is not only good itself but socially useful, for it enables the dissent and discovery that drive improvement—in morality (through experiments in living) as in science (through experiments in empirical testing).
Consider some personal rather than social cases. When our friends complain that they cannot bring themselves to carry out projects that they would like to, it is normally considered rude—not respectful of agency—to tell them to be better people. Instead of going after their characters, we suggest changes in their external circumstances. We counsel the colleague who wants to learn French to take a course with regular exams; we suggest that our unfit friend hire a personal trainer or join a running club. But financial incentives operate precisely like this. They preserve our respect for individual character. And when applied throughout a society, they make certain outcomes more likely (as when health plans offer to buy gym memberships for members to keep them healthier) but let individuals whose life plans differ from the collective ones do as they please if they’re willing to forego the incentive.
It's not clear that Cohen really understands liberals' reasons for valuing liberalism. His reading of Mill recognizes only the reformist side of Mill's thought, while slighting Mill's reasons for wanting reform to take place through criticism and example rather than social coercion. The words "tolerant" and "toleration" appear only as pejoratives in his work; he seems to fear rather than treasure a society in which moral views and systems differ fundamentally in ways that track the variety of individual circumstances, backgrounds, and judgments. And he neglects the possibility that liberals who limit the idea of justice to the "basic structure" of society may be doing so not out of mere inconsistency but out of a recognition of moral pluralism. Justice matters, and so does the need to justify one's actions, but perhaps these good things must yield at some point to other (intrinsically) good things: privacy, say, and individuality.
The gap between neo-Marxists like Cohen, however "democratic" or non-authoritarian, and liberals, however "left" or "social," is bigger than many in both camps think. Marxists value fraternity. Liberals value individuality. Marxists think people in society should try to hold as many values and projects as possible in common with their fellows. Liberals think we are better off having very few common projects as possible in common with their fellows. In fact, those whose lives depart greatly from those that are socially expected, as long as the departures are willed and interesting, are quite likely to be the best people—both the most authentically happy and the most beneficial to society. One of liberalism's central points is that social progress need not, and often cannot, be achieved by increasing social feeling.
Even when liberals support redistribution and the welfare state, as we often do (quite rightly), it's for reasons that distinguish us very sharply from neo-Marxists. Marxists like the fact that the welfare state expresses commonality and solidarity. Liberals hope that it does no such thing: that it will free all citizens from having to worry about people they don’t particularly like (and shouldn’t have to): free the poor from fawning towards the rich, and free the rich from the unctuous artificiality of voluntary charity.
Granted, certain rationalist liberals and those who seek to build bridges with communitarians and radical socialists in fact do aspire to these ideals of mutual justification, fraternity, and rational consistency as the basis for social unity. They do indeed play down, or abandon altogether, individuality as liberalism's animating idea. And they do indeed try (a la Dewey) to make liberalism consistent with an extremely demanding form of social solidarity. These kinds of liberalism may indeed be inconsistent of hypocritical. And these kinds of liberals may indeed have dug their own graves—with Cohen as gravedigger. But the rest of us liberals may safely whistle past them.

As I said, the debate is just starting. If you've got comments, be sure to copy them to Sabl.

In defense of seditious libel? Josh Chafetz at OxBlog commented earlier today about local authorities who declared certain federal laws unconstitutional. In the midst of his post, Chafetz wrote, "The [Virginia and Kentucky] Resolutions argued that the Alien and Sedition Acts were unconstitutional, which they undoubtedly were." This got me thinking. I agree that the Sedition Act was unconstitutional--nothing too controversial there. In fact, I've always been amazed that the Sedition Act was so overtly partisan that it applied only to speech and press directed against "the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President." Any glaring omissions here? What about the Vice-President? No need to protect Jefferson from the contempt and hatred of the people.

The Sedition Act was a calculated attempt to suppress political opposition, and it has been completely discredited historically. But Chafetz's comment left me wondering whether there is anything to be said for a law against defaming the government? Suppose for example, that someone publishes an elaborate but demonstrably false report claiming that the federal government is operating death squads targeting a particular minority group. If this report gained currency, it might exacerbate mistrust of the majority, spur outbreaks of violence against public officials, and, more generally, diminish public confidence in government. The question is why should the publisher of such a report have the freedom to defame, libel, or maliciously criticize the government? Madison's answer in the Virginia Report, available here, is that "it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing characters and measures." Freedom of the press may be costly to government. People will sometimes publish unjustifiable reports that are nevertheless quite damaging. Yet, as Madison says, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." Because the free circulation of facts, opinions, and ideas is crucial for effective and legitimate political opposition, and because of the difficulty in isolating abusive practices, the government should not have the power to prosecute seditious libel.

This argument has carried the day in the United States. It forms the core of contemporary first amendment doctrine. We can thank Justice Brennan for enshrining Madison's principles in New York Times v. Sullivan (1964). But is Madison's argument as strong as we think it is? Consider a hypothetical seditious libel law that applies only to (i) false factual claims whose publication would (ii) threaten imminent and serious harm. The hypothetical statute might also require (iii) that the government establish the falsity of the claims in question beyond a reasonable doubt, and (iv) that the prosecution show actual malicious intent on the part of the publisher. Additionally, the statute might also require (v) that the government pay lawyers' fees and damages if it loses its case. Would a law of this kind still have a chilling effect on legitimate political speech? I think it probably would. But for the sake of argument, consider a defense of the hypothetical statute that builds on arguments analogous to some of those made by the Supreme Court today in Virginia v. Black (upholding Virginia's ban on cross-burning with the intent to intimidate), available here. Maybe any speech covered by the hypothetical law would always be covered under other laws against incitement or intimidation. To that extent, the seditious libel statute would be redundant, except perhaps for sentencing purposes. It would merely be a way to send a message that citizens have a duty not to level malicious--and demonstrably false--claims against the government. Maybe the law would never actually be applied. It would serve only as a symbolic reminder of the importance of honest and responsible political criticism. Is Madison's argument still forceful against a law hemmed in by these types of restrictions?

To be very clear, I am not advocating that government reinstate the crime of seditious libel. I'm asking the question because I think it's easy to forget the appeal of laws against defaming the government. When the government has as much power as it does in the United States today, these types of laws don't seem all that important--indeed, we have good reason to see them as highly pernicious. But in unstable democracies threatened with civil dissolution, or in countries ruled by so-called "liberal authoritarian" regimes, the arguments in favor of restricting the freedoms of political speech and press may seem much more compelling. At any rate, I'm reminded of Mill's line "that if opponents of all important truths do not exist, it is indespensible to imagine them, and supply them with the strongest arguments which the most skillful devil's advocate can conjure up." We're all familiar with the most powerful objections to having a crime of seditious libel. What's the best argument you can come up with in favor of it?


Fox and Unlearned Hand both have interesting posts today. Russell Arben Fox has a lengthy response to Gary Hart's question concerning whether it's democracy or liberalism we really care about in the Islamic world. Also, I loaned my copy of Adam Swift's book to Unlearned Hand--who is, as others have rightly noted, quite learned. Swift straightens out the mess that is Berlin's two concepts of liberty. See Unlearned for the details, or, better yet, pick up Swift's book for yourself.


Is there progress in moral and political philosophy? The guys on OxBlog are pondering the question: "Has our knowledge of truth and justice advanced beyond [Plato]?" Chafetz answers yes, and I agree completely. When I've got more time, I'll try to say more. Issuing lots of promissory notes here . . .

Should politicians blog? Charles Kuffner and Ezra Klein are having an important discussion about whether it's a good idea for Gary Hart to be blogging. Personally, I think the only problem with Hart's blog is that it doesn't link to a certain other blog . . . But, more seriously, I think Ezra's right that controversy over political blogging can only be a good thing for Hart's potential campaign. Hart understands the significance of new technologies and their ability to transform political conversation. Also, I think the fact that he has a blogroll and comments places him squarely in the blogosphere. Compare Dean's blog, which looks more like a rolling press release. Bloggers are right to be giving Hart a lot of credit for taking this medium seriously.

Leviathan in Milton, Melville and beyond: Patrick Belton, a friend from Oxford and current contributor to OxBlog, has a wonderful post today about the idea of leviathan. His comments were prompted by the discovery of a "colossal" squid caught this week by fisherman off the coast of Antarctica. Belton is blogging at his best.


Even more on Cohen's critique of Rawls: one of Jerry Cohen's former students, Tom Runnacles, defends the line. As I said below, this debate is really just getting going.


Affirmative action: the Supreme Court heard arguments in the Michigan cases today. For a great set of related links, see Solum's Legal Theory blog.

Updates on political theory in blogosophere: Bertram, Solum, Yglesias, and Fox all have more to say about Rawls and Cohen's critique of the Difference Principle. Political Theory Daily Review has some good links today. One is to a review of Richard Posner's new book Law, Pragmatism, and Democracy. I saw Posner present some of the chapters of this book at a panel in London about year ago. He went out of his way to defend Korematsu, which is the Supreme Court decision that upheld the internment of Japanese Americans in World War II. Pretty shameful stuff. In the context of discussing Bush v. Gore, Posner also rejects the requirement of judicial candor, so that judges are not obligated to give us their real reasons for deciding the case. (This should inspire lots of confidence when we're reading Posner's opinions.) I think this amounts to an endorsement of judicial lying, but I'll have to defend that claim some other time. Lastly, Political Theory Daily also links to an interesting panel interview with Stanley Fish, Stanley Aronowitz (of Social Text fame), and Stephen Balch. The subject is Fish's article on why "A University is not a Political Party"--a theme that dovetails nicely with some of what I've written below. I hope this keeps you busy for awhile. I may not be blogging much over the next few days.