Guyora Binder - Profile on Academia.edu (original) (raw)
Papers by Guyora Binder
Susanna L. Blumenthal. Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture
American Journal of Legal History
Why Punish?
Criminal Law, 2016
Justification and Excuse
Criminal Law, 2016
The Criminal Act
Criminal Law, 2016
The Criminal Mind
Criminal Law, 2016
Foundations of the Legislative Panopticon: Bentham's Principles of Morals and Legislation
The Dialectic of Duplicity: Treaty Conflict and Political Contradiction
ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is ... more ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is the second precluded by the first? International lawyers have traditionally held opposing views on this question. This article, the first on the topic, provides a comprehensive analysis and critique of the treaty conflict problem, and offers a political theoretic explanation for its persistent intractability. According to this explanation, opposing views of the power of states to incur international commitments reflect opposing views of the normative basis for state sovereignty and the scope of state autonomy. One view proceeds from an imperial model of sovereignty, articulated by Bodin and Hobbes, that conceives the state as a custodian of the welfare insterests of a population. The other proceeds from a republican model of sovereignty, articulated by Machiavelli and Rousseau, that conceives the state as a vehicle for the self-expression of a community. Finally, drawing on the political economy of Smith, Hegel, and Polanyi, the article argues that the republican model is more effective in mobilizing the support of a population, but creates externalities that prevent it from being universalized. In short, autonomous republican sovereignty is always an illusion, depending on imperial sovereignty elsewhere. As long as nation-states remain a feature of the international system, sovereign equality will remain a myth. International law will have to regulate relations among governments of different kinds, including some form of colonial dependency.
The Coptown Case: Inviolable Status and Desert
The Meaning of Killing
The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the ... more The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the prosecution must prove she committed an act causing the death of another, accompanied by a culpable mental state. The law conceived homicide very differently in seventeenth-and eighteenth-century England: a killing required an act culturally recognizable as a violent assault. By “rethinking” killing as a kind of act rather than a result, this paper explains the transformation of homicide from unexcused killing to culpable causing. It examines a cross-section of the homicide cases reported in the Proceedings of the Old Bailey between 1674 and 1834. The study’s cases suggest that the categories of murder, manslaughter, and accidental death were distinguished primarily on the basis of differences in conduct rather than mental states, and that intent to kill was almost completely peripheral in seventeenth and eighteenth century English homicide law.
What’s Left?
Addressing the future of radical politics at the end of the cold war, this article offers a recon... more Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic association as an alternative model of transformation and defends this project against the deconstructive critiques of participatory democracy and community. The logical extension of these arguments would preclude radical politics altogether and replace it with critique.
The Slavery of Emancipation
The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slav... more The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still often assumed that ex-slaves would need to be governed by whites. A discussion of manumission, self-purchase and labor contracting in the antebellum U.S. argues that although these mechanisms were less common than in other slave societies, they were nevertheless important until the decades immediately...
In "Defending Humanity: When Force is Justified and Why," George Fletcher and Jens Ohli... more In "Defending Humanity: When Force is Justified and Why," George Fletcher and Jens Ohlin analogize international defensive force to individual self-defense. Based on this analogy, Fletcher and Ohlin justify a presumptive right on the part of every state to intervene against aggression, and a right of humanitarian intervention in support of national groups but not populations. They oppose reprisals, preemptive defense, and resistance to invading armies by irregular troops. This review essay argues that the relative weakness of the Security Council, the unequal power of states, and the contingency of international recognition on effective force all undermine the analogy between the position of states in the international order and the position of individuals in a rule of law state. This disanalogy undermines each of Fletcher and Ohlin's policy recommendations.
American constitutional interpretation is deeply traditionalist, and privileges original intent. ... more American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.
The Law-as-Literature Trope
Rather than trying to apprehend the Law and Literature movement as a theory or hypothesis, this e... more Rather than trying to apprehend the Law and Literature movement as a theory or hypothesis, this essay tries to apprehend it as a literary genre by reading its identifying trope, the analogy of law to literature. Drawing on romantic ideas of literature as liberating and Victorian ideas of literature as edifying and civilizing, the law-as-literature trope is too easily invoked in support of emptily skeptical or sentimental critiques of legal arrangements, or genteelly authoritarian apologies for them. The essay examines five variants of the law-as-literature analogy as deployed in legal scholarship, each emphasizing a different model of literary activity (interpretation, narration, rhetoric, signification, and representation). The first three illustrate the risks of skepticism, sentimentalism and authoritarianism respectively. The fourth illustrates the risks of both skepticism and sentimentalism. The fifth, combining insights from the others, shows promise of checking their deficienc...
Revolution as a Constitutional Concept
Although the concept of revolution was associated with a predictable cycling among static constit... more Although the concept of revolution was associated with a predictable cycling among static constitutional orders in seventeenth and eighteenth century republican thought, this article explores the idea of a dynamic or revolutionary constitution. It traces this idea back to a customary constitutionalism articulated in the French and American revolutions, and examines its fuller expression in the synthesis of Whig and antislavery constitutionalism developed by Abraham Lincoln.
Susanna L. Blumenthal. Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture
American Journal of Legal History
Why Punish?
Criminal Law, 2016
Justification and Excuse
Criminal Law, 2016
The Criminal Act
Criminal Law, 2016
The Criminal Mind
Criminal Law, 2016
Foundations of the Legislative Panopticon: Bentham's Principles of Morals and Legislation
The Dialectic of Duplicity: Treaty Conflict and Political Contradiction
ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is ... more ABSTRACT When a state undertakes conflicting treaty obligations are both treaties binding, or is the second precluded by the first? International lawyers have traditionally held opposing views on this question. This article, the first on the topic, provides a comprehensive analysis and critique of the treaty conflict problem, and offers a political theoretic explanation for its persistent intractability. According to this explanation, opposing views of the power of states to incur international commitments reflect opposing views of the normative basis for state sovereignty and the scope of state autonomy. One view proceeds from an imperial model of sovereignty, articulated by Bodin and Hobbes, that conceives the state as a custodian of the welfare insterests of a population. The other proceeds from a republican model of sovereignty, articulated by Machiavelli and Rousseau, that conceives the state as a vehicle for the self-expression of a community. Finally, drawing on the political economy of Smith, Hegel, and Polanyi, the article argues that the republican model is more effective in mobilizing the support of a population, but creates externalities that prevent it from being universalized. In short, autonomous republican sovereignty is always an illusion, depending on imperial sovereignty elsewhere. As long as nation-states remain a feature of the international system, sovereign equality will remain a myth. International law will have to regulate relations among governments of different kinds, including some form of colonial dependency.
The Coptown Case: Inviolable Status and Desert
The Meaning of Killing
The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the ... more The modern lawyer thinks of homicide as a crime of result. To convict a suspect of homicide, the prosecution must prove she committed an act causing the death of another, accompanied by a culpable mental state. The law conceived homicide very differently in seventeenth-and eighteenth-century England: a killing required an act culturally recognizable as a violent assault. By “rethinking” killing as a kind of act rather than a result, this paper explains the transformation of homicide from unexcused killing to culpable causing. It examines a cross-section of the homicide cases reported in the Proceedings of the Old Bailey between 1674 and 1834. The study’s cases suggest that the categories of murder, manslaughter, and accidental death were distinguished primarily on the basis of differences in conduct rather than mental states, and that intent to kill was almost completely peripheral in seventeenth and eighteenth century English homicide law.
What’s Left?
Addressing the future of radical politics at the end of the cold war, this article offers a recon... more Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic association as an alternative model of transformation and defends this project against the deconstructive critiques of participatory democracy and community. The logical extension of these arguments would preclude radical politics altogether and replace it with critique.
The Slavery of Emancipation
The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slav... more The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still often assumed that ex-slaves would need to be governed by whites. A discussion of manumission, self-purchase and labor contracting in the antebellum U.S. argues that although these mechanisms were less common than in other slave societies, they were nevertheless important until the decades immediately...
In "Defending Humanity: When Force is Justified and Why," George Fletcher and Jens Ohli... more In "Defending Humanity: When Force is Justified and Why," George Fletcher and Jens Ohlin analogize international defensive force to individual self-defense. Based on this analogy, Fletcher and Ohlin justify a presumptive right on the part of every state to intervene against aggression, and a right of humanitarian intervention in support of national groups but not populations. They oppose reprisals, preemptive defense, and resistance to invading armies by irregular troops. This review essay argues that the relative weakness of the Security Council, the unequal power of states, and the contingency of international recognition on effective force all undermine the analogy between the position of states in the international order and the position of individuals in a rule of law state. This disanalogy undermines each of Fletcher and Ohlin's policy recommendations.
American constitutional interpretation is deeply traditionalist, and privileges original intent. ... more American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.
The Law-as-Literature Trope
Rather than trying to apprehend the Law and Literature movement as a theory or hypothesis, this e... more Rather than trying to apprehend the Law and Literature movement as a theory or hypothesis, this essay tries to apprehend it as a literary genre by reading its identifying trope, the analogy of law to literature. Drawing on romantic ideas of literature as liberating and Victorian ideas of literature as edifying and civilizing, the law-as-literature trope is too easily invoked in support of emptily skeptical or sentimental critiques of legal arrangements, or genteelly authoritarian apologies for them. The essay examines five variants of the law-as-literature analogy as deployed in legal scholarship, each emphasizing a different model of literary activity (interpretation, narration, rhetoric, signification, and representation). The first three illustrate the risks of skepticism, sentimentalism and authoritarianism respectively. The fourth illustrates the risks of both skepticism and sentimentalism. The fifth, combining insights from the others, shows promise of checking their deficienc...
Revolution as a Constitutional Concept
Although the concept of revolution was associated with a predictable cycling among static constit... more Although the concept of revolution was associated with a predictable cycling among static constitutional orders in seventeenth and eighteenth century republican thought, this article explores the idea of a dynamic or revolutionary constitution. It traces this idea back to a customary constitutionalism articulated in the French and American revolutions, and examines its fuller expression in the synthesis of Whig and antislavery constitutionalism developed by Abraham Lincoln.