Thank you for this illuminating piece, Professor. I am new to this world and am trying to figure out what to read, and, perhaps just as importantly, what not to read. Do you have any recommendations for a treatment of Schmitt that accurately captures the nuances you lay out in your piece? Thanks!
“For the classical lawyer, law is an ordinance of reason for the common good, not merely an ordinance simply, and authority is not will alone, although specification of principles of legal justice into operative legal rules is in part an act of will. Rather genuine authority is the happy union of power with legal justice, ultimately founded on intelligible reason.” It is striking how we’ve never escaped the tension between power & justice in the Platonic corpus, try as we might!
“But it is worth saying that just by reading Political Theology, The Concept of the Political, and perhaps a few other of Schmitt’s most famous works at the boundary of political theory, one will have no understanding whatsoever of Schmitt’s properly juristic views.” This would appear to be a weakness in Schmitt’s presentation of his own views, no?
Why? Not every book has to be about every topic. He was perfectly clear about his juristic views. It’s just that the political theorists read his books about political theory and don’t read his properly legal stuff. And they make the mistake of seeing him as primarily a political theorist instead of a lawyer.
by MAGA we mean least-restrictive-means for all amendments. All aspects of life should be self-chosen and self-directed, not just those in the bedroom or doctor's office.
saying "no one is above the law" means that whatever laws the police are exempt from, so are the rest of us. If the police can carry semi-automatic firearms for self-defense in public, then so can the rest of us--the law applies the same to everyone by treating everyone the same everywhere at all times
by textualist, we don't mean that the law doesn't apply to modern technology (medium-neutrality) or to obscenity and misinformation (content-neutrality)
by textualist we mean that rights are individual civilian rights and not merely institutionalist (NYT) or collective (in the militia) rights
Professor: I disagree w/your framing of originalists as positivists. And calling those who "fold" natural law into originalism "ersatz originalists" doesn't seem accurate. Nevertheless, I very much appreciate this essay for its main thrust: which is to distinguish your arguments from those of the "new right law-skeptics," as you term them. The idea that law is simply an instrument of power is what I find repellent about many on the left, and I find it just as repellent when those who claim "the right" wield the argument. I think there is much common ground with your position-- at least as articulated here -- and the position of those who you call ersatz originalists.
Thank you for this illuminating piece, Professor. I am new to this world and am trying to figure out what to read, and, perhaps just as importantly, what not to read. Do you have any recommendations for a treatment of Schmitt that accurately captures the nuances you lay out in your piece? Thanks!
The book by Montserrat Herrero, it’s great. Cheers!
“For the classical lawyer, law is an ordinance of reason for the common good, not merely an ordinance simply, and authority is not will alone, although specification of principles of legal justice into operative legal rules is in part an act of will. Rather genuine authority is the happy union of power with legal justice, ultimately founded on intelligible reason.” It is striking how we’ve never escaped the tension between power & justice in the Platonic corpus, try as we might!
This is why a page of history is worth a volume of philosophy — we’ve seen it done! St. Louis, ora pro nobis.
🙏🙏
“But it is worth saying that just by reading Political Theology, The Concept of the Political, and perhaps a few other of Schmitt’s most famous works at the boundary of political theory, one will have no understanding whatsoever of Schmitt’s properly juristic views.” This would appear to be a weakness in Schmitt’s presentation of his own views, no?
Why? Not every book has to be about every topic. He was perfectly clear about his juristic views. It’s just that the political theorists read his books about political theory and don’t read his properly legal stuff. And they make the mistake of seeing him as primarily a political theorist instead of a lawyer.
by MAGA we mean least-restrictive-means for all amendments. All aspects of life should be self-chosen and self-directed, not just those in the bedroom or doctor's office.
saying "no one is above the law" means that whatever laws the police are exempt from, so are the rest of us. If the police can carry semi-automatic firearms for self-defense in public, then so can the rest of us--the law applies the same to everyone by treating everyone the same everywhere at all times
by textualist, we don't mean that the law doesn't apply to modern technology (medium-neutrality) or to obscenity and misinformation (content-neutrality)
by textualist we mean that rights are individual civilian rights and not merely institutionalist (NYT) or collective (in the militia) rights
The US has never applied law justly or equally.
Also, China and Iran have beenpretty stable for decades - must mean they have some divinely moral laws yes? Everyone is happy and safe?
Professor: I disagree w/your framing of originalists as positivists. And calling those who "fold" natural law into originalism "ersatz originalists" doesn't seem accurate. Nevertheless, I very much appreciate this essay for its main thrust: which is to distinguish your arguments from those of the "new right law-skeptics," as you term them. The idea that law is simply an instrument of power is what I find repellent about many on the left, and I find it just as repellent when those who claim "the right" wield the argument. I think there is much common ground with your position-- at least as articulated here -- and the position of those who you call ersatz originalists.