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Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, to legal justification.

The justification of punishment is an age-old debate which continues unresolved. In late twentieth century several attempts were made to reconcile the two opposing justifications: retributivism and consequentialism. But these attempts focused narrowly on merely one manifestation of punishment, i.e.: criminal punishment carried out by the state. To the extent that these mixed justifications are successful, they relate to only one (undoubtedly important) manifestation of punishment. But clearly punishment can occur in many different institutional contexts, and the institutions in each context vary dramatically in complexity and relevance. I recommend analyzing punishment in its manifold manifestations.

How can philosophers contribute to the resolution of the current prison crisis in the United States, and what sorts of philosophical work should activists make use of in their efforts to address that crisis? This paper examines two periods of prison reform in the 20th century, to indicate the problematic role that traditional theories of the moral justification of punishment have had in the history of reform effects have played. I argue that moral theories of punishment are not the best vehicle for addressing the prison crisis; the approaches suggested by critical social theory are more promising.

This chapter uncovers the destabilizing and transformative dimensions of a legal process commonly described as assimilation. Lawyers working on behalf of a marginalized group often argue that the group merits inclusion in dominant institutions, and they do so by casting the group as like the majority. Scholars have criticized claims of this kind for affirming the status quo and muting significant differences of the excluded group. Yet, this chapter shows how these claims may also disrupt the status quo, transform dominant institutions, and convert distinctive features of the excluded group into more widely shared legal norms. This dynamic is observed in the context of lesbian, gay, bisexual, and transgender (LGBT) rights, and specifically through attention to three phases of LGBT advocacy: (1) claims to parental recognition of unmarried same-sex parents, (2) claims to marriage, and (3) claims regarding the consequences of marriage for same-sex parents. The analysis shows how claims that appeared assimilationist – demanding inclusion in marriage and parenthood by arguing that same-sex couples are similarly situated to their different-sex counterparts – subtly challenged and reshaped legal norms governing parenthood, including marital parenthood. While this chapter focuses on LGBT claims, it uncovers a dynamic that may exist in other settings.

Reading African American literature through the lens of American legal history broadly construed and reading American legal history through the lens of African American literature reshapes both texts of American experience and provides new readings of the literature and new perspectives on the law. Consequences for the understanding of each socially constructed “text” of reality proceed from examining their common narratival practices, specifically calling for a new periodization and taxonomy of African American literature and for a new “romantic” history of American law.