Justice as Integrity: Tolerance and the Moral Momentum of Law

Justice as Integrity: Tolerance and the Moral Momentum of Law

by David Fagelson
     
 

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Do any moral values underlie the foundations of law and society in America? In Justice as Integrity, David Fagelson argues that morality is indeed a part of the idea of law. Examining controversies of speech and privacy, he does not ignore the conservative communitarian streak in America, but argues that liberal tolerance best fits the social meanings of American

Overview

Do any moral values underlie the foundations of law and society in America? In Justice as Integrity, David Fagelson argues that morality is indeed a part of the idea of law. Examining controversies of speech and privacy, he does not ignore the conservative communitarian streak in America, but argues that liberal tolerance best fits the social meanings of American political morality. While tolerance plays a critical role, different social practices yield different conceptions of tolerance. Judges must interpret any public text to develop coherent narratives that best explain the use of force in their jurisdiction. In America, Fagelson argues, liberal tolerance is the sovereign principle that the Supreme Court uses as a prism when interpreting social institutions like marriage, speech, and even death, to make them more consistent with personal autonomy.

About the Author:
David Fagelson is Associate Professor of Law and Society at American University

Editorial Reviews

Law and Politics Book Review
In what can be fairly described as an extended conversation with Ronald Dworkin, Fagelson seeks "to offer an alternative way to think about the moral content of legal interpretation and the role of morality in understanding our legal rights," and to "locate and describe the moral foundations of law in America" (p.2). Fagelson, a self-described moral realist, admires Dworkin. He accepts Dworkin's view of the task of legal theory as well as his conception of "law as integrity." He shares what he calls Dworkin's "dream" that judges in the United States never create law, but always "discover it, if not in the written law, then in society's latent principles and values that help form the fundamental law" (p.36) (Actually, Dworkin calls the distinction between finding and inventing law a "false dichotomy" (1986, 225-228), but perhaps Fagelson's characterization is apt nevertheless). Dworkin sets the right agenda by tying law and rights to more basic and abstract principles of justice and political morality (pp.50, 87). Where Dworkin goes wrong, Fagelson argues, is in his refusal to apply his notion of "constructive interpretation" to "justice" as well as to "law"-hence Fagelson's title, "Justice As Integrity.".
—Michael Paris

Product Details

ISBN-13:
9780791467633
Publisher:
State University of New York Press
Publication date:
08/24/2006
Series:
SUNY series in American Constitutionalism Series
Pages:
234
Product dimensions:
6.20(w) x 9.10(h) x 0.80(d)

Meet the Author

David Fagelson is Associate Professor of Law and Society at American University.

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