Abstract
Throughout my professional life I have been concerned with rules that regulate social behaviour, in general terms “punishing bad” and, more often, “enabling” those whose activities are considered to be “good”, i. e. furthering their own and society’s interests. Understanding my background and intellectual aims is important for the reader if he is to understand the starting point of my thinking as well my own set of biases, so I must begin by making them clear.
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References
The Nature of the Judicial Process (1921), pp. 166–67.
Robert Browning’s (1812–89) Paracelsus published in 1835 was the poet’s second main work after Pauline: A Fragment of a Confession published four year earlier and dealing with the progress of the soul through many troubles to final peace. The second work, inspired by the work and peripatetic life of the Swiss alchemist, physician and philosopher Paracelsus (or Theophrastus Bombastus von Hohenheim: 1493–1541) also deals with the search for scientific truth and the difficulties of finding it.
“The Comparatist (or a Plea for a Broader Legal Education)”, in The Yearbook of European Law (1996) reprinted in Foreign Law and Comparative Methodology: A Subject and a Thesis (1977), pp. 15 ff.
The Times, 16 May 2006, p. 6.
In Britain, a thoughtful account of the civil justice system can be found in the monograph of Professor Ross Cranston — until recently Solicitor General — entitled How Law Works: The Machinery and Impact of Civil Justice (OUP 2006).
M. Dennoix de Saint Mark in an article published in the daily Figaro of 13 March 2006.
Thus, see, Sanford Levinson and J. M. Balkin “Law, Music and Other Performing Arts”, 139 U. Pa. L. Rev. 1597 (1991). I am only aware of two other articles written by lawyers and dealing with the law/music relationship. They are, chronologically, Jerome Frank’s “Words and Music: Some Remarks on Statutory Interpretation”, 47 Columb. L. Rev. 1259 (1947) and John Ely’s “Another Such Victory” Constitutional Theory and Practice in the World Where Courts and No Different from Legislatures”, 77 Va. L Rev., 833 (1991). Interestingly enough Ely concludes that for the purposes of his survey the study of jazz offers little guidance to constitutional interpretation, a demonstration which, as I say at the end of my brief remarks above, still remains to be proved because of lack of specificity in the legal literature which advocates this usual borrowing and learning.
Richard Posner, Law and Literature (1998), p. 248, responding to Professor Levinson’s article “Law and Literature”, 60 Texas Law Review, 373, 391 (1982).
This is obvious from the way Levinson/Balkin respond to Posner in their article “Law, Music, and other Performing Arts”, 139 U. Pa. L. Rev. 1597, 1603 (and the rather feeble note 25) trying to suggest that Levinson’s original statement may have been taken in the wrong way. Personally, I deeply regret the missed opportunity by Levinson/Balkin to “concretise” their thesis, especially since they stress themselves their belief that the study of Beethoven or Shakespeare can provide a “practical [sic] aid” to the constitutional interpreter.
This link was recently explored in an exemplary manner by the late Professor Thomas Puttfarken, Titian & Tragic Painting. Aristotle’s Poetics and the Rise of the Modern Artist. (2005), es. chaps. 1, 6–8.
OLG Frankfurt VRS [Die Verkehrsrechtssammlung] 28, 364. The decision is important on the distinction between acts, on the one hand, for which a person will be held criminally liable and, on the other, involuntary bodily reactions (e. g., driver stung by a wasp close to the eye, swerves off the road due to intense pain) for which he may not be. The Court of Appeal saw the driver’s conduct as an “act” in the sense of the Criminal Code, despite the instinctive nature of his reaction; and the Supreme Federal Court approved. Though highly controversial at the time, the decision is still good law.
Oscar Wilde, The Critic as Artist. In this work I have used the reproduction found in Complete Works of Oscar Wilde (with an introduction by Vyvyan Holland). Harper Perennial Library edition (1989), 1029.
The Fragility of Goodness. Luck and Ethics in Greek Tragedy and Philosophy (1986, revised and with a new and long preface, 2001), p. xiv.
For more on this, see Dennis F. Mahoney, “Autobiographical writings” in The Cambridge Companion to Goethe (ed. by Lesley Sharpe, 2002), pp. 147, 152.
The most recent essay comparing Justinian and Napoleon is by Tony Weir “Two Great Legislators”. 21st Tulane European and Civil Law Forum, pp. 35–51 (2006). The essay, written in the author’s well-know elegant style, notes the greatness of both these historical figures but also describes them “as moral monsters”.
Goethe, for instance, is problematic on all these issues though one has to bear in mind that his attitudes towards them represented the norm in his times. Telescoping our values into his era may thus be an unscientific way of condemning him. For further details thus see: Barbara Becker-Cantarino. “Goethe and gender” in The Cambridge Companion to Goethe (ed. Lesley Sharpe), (2002), pp. 179 ff. For his views on the imposition of the death sentence, which he thought should be imposed on a woman accused of infanticide, see W. Daniel Wilson “Goethe and the political world”, in The Cambridge Companion to Goethe (ed. Lesley Sharpe), (2002), pp. 207, at p. 212.
“Goethe, das deutsche Wunder”, reprinted in Thomas Mann-Dichter und Herrscher. Europäischer Geist in fünf Jahrhunderten. Ausgewählt von Rudolf Hochhutch, Buchgemeinschafts-Ausgabe, p. 9.
John C. Ford, The Fundamentals of Holmes’ Juristic Philosophy’, 11 Fordham L. Rev. 255 (1942); Paul L. Gregg, “The Pragmatism of Mr. Justice Holmes”, 31 Geo L. J. 262 (1943); Francis E. Lucey, “ Holmes — Liberal — Humanitarian — Believer in Democracy?”, 39 Geo. L. J. 523 (1951).
Albert W. Alschuler, Law Without Values. The Life, Work, and Legacy of Justice Holmes (2000).
274 US 200, 207 (1927). The key extract deserves to be quoted in full since I think it was horrific in its coldness when it was uttered and even more so in our times making even the purely literary praise of doubtful taste. Holmes thus wrote at pp. 207–08: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [citation omitted] Three generations of imbeciles are enough.”
Law and Literature, 2nd ed. (1998), p. 273. How does the Holmes philosophy differ from the ancient Spartan custom of throwing impaired newly born babies into a nearby ravine to be killed by wild animals? And does it differ quantitatively or qaulititativly from some Nazi practices which Posner uses on p. 310 to condemn German judges doing the bidding of the Nazi regime? To me, reprehensible though this judicial submission was, it is different to the extent that it was, to some degree, the product of duress, a defence not available to Holmes.
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(2007). Setting the Scene. In: Good and Evil in Art and Law. Springer, Vienna. https://doi.org/10.1007/978-3-211-49919-1_1
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