Kent Greenawalt - Böcker

Legal norms may forbid, require, or authorize a particular form of behavior. The law of contracts, for example, informs people how to enter into agreements that will bind both sides, and from this we establish legal requirements on how they should behave. In public law, legal standards provide authority to legislators and executive officials to set standards for citizens, and also give judges the authority to decide disputes by applying and interpreting governing standards. In Realms of Legal Interpretation, Kent Greenawalt focuses on how courts decide what is legally forbidden or authorized, and how context shapes their decisions. The problem, he argues, is that we do not, and never have, agreed exist on all the details of the standards United States judges should employ--like everyone else, judges have different ideas of what constitutes good common sense. Moreover, circumstance regularly throws up hurdles. For instance, what should a judge do if the text of a statute does not fit the intention of the legislators, or if someone has obviously and mistakenly omitted a necessary item from a will or contract? Different judges react in different ways. Acknowledging that courts will never agree upon a uniform approach to applying norms and interpreting the law, Greenawalt's aim is to provide a capacious, user-friendly model for approaching hard cases sensibly in both public and private law. Just as importantly, the book serves as a pithy guide to the major forms of legal interpretation for nonlawyers. Ultimately, Realms of Legal Interpretation represents a pithy distillation of Greenawalt's many works on the theories that anchor legal interpretation in America's legal system.

This is the first thorough examination of what has become an intensely relevant contemporary issue. Beginning with an account of the basic premises of liberal democracy, it moves on to a comparison between rational, secular grounds of decision and grounds based on religious convictions. The author discusses particular issues such as animal rights and abortion, showing how religious convictions can bear on an individual's decisions about them, and enquires whether reliance on such convictions is compatible with liberal democratic premises. He disputes the claim that human beings can be expected to rely exclusively on rational, secular grounds, given their limited capacities.

This book deals with conscientious law-breaking - those instances in which individuals believe that they have sound moral reasons for breaking a particular law. This study is a comprehensive philosophical and legal analysis of the grey area in which the foundations of law and morality clash. It views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers.

How far may Americans properly rely on their religious beliefs when they make and defend political decisions? For example, are ordinary citizens or legislators doing something wrong when they consciously allow their decisions respecting abortion laws to be determined by their religious views? Despite its intense contemporary relevance, the full dimensions of this issue have until now not been thoroughly examined. Religious Convictions and Political Choice represents the first attempt to fill this gap. Beginning with an account of the basic premises of our liberal democracy, Greenawalt moves to a comparison between rational secular grounds of decision and grounds based on religious convictions. He discusses particular issues such as animal rights and abortion, showing how religious convictions can bear on an individual's decisions about them, and inquires whether reliance on such convictions is compatible with liberal democratic premises. In conclusion, he argues that citizens cannot be expected to rely exclusively on rational, secular grounds.

This is a paperback reprint of a book published in 1989.In this comprehensive treatise Greenawalt explores the three-way relationship between the idea of freedom of speech, the law of crimes, and the many uses of language. He begins by considering free speech as a political principle, and after a thorough and incisive analysis of the justifications commonly advanced for freedom of speech, looks at the kinds of communications to which the principle of free speech applies. He then turns to an examination of communications for which criminal liability is fixed. Focusing on threats and solicitations to crime, he attempts to determine whether liability for such communications seriously conflicts with freedom of speech. He then goes on to develop the significance of his conclusions for American constitutional law.

Within democratic societies, a deep division exists over the nature of community and the grounds for political life. Should the political order be neutral between competing conceptions of the good life or should it be based on some such conception? This book addresses one crucial set of problems raised by this division: What bases should officials and citizens employ in reaching political decisions and justifying their positions? Should they feel free to rely on whatever grounds seem otherwise persuasive to them, like religious convictions, or should they restrict themselves to "public reasons," reasons that are shared within the society or arise from the premises of liberal democracy? Kent Greenawalt argues that fundamental premises of liberal democracy alone do not provides answers to these questions, that much depends on historical and cultural contexts. After examining past and current practices and attitudes in the United States, he offers concrete suggestions for appropriate principles relevant to American society today. This incisive and timely analysis by one of our leading legal philosophers should attract a wide and diverse readership of scholars, practitioners, and concerned citizens.

Comparative Legal Interpretation focuses on textual interpretation of the law. All law needs to be interpreted, and there are many ways to do it. Greenawalt covers the dominant methods of legal interpretation, explaining their underlying structure and efficacy. But there are other issues involved. Which perspective should we prioritize--the writer or the reader? Should interpretation be abstract or contextual? Should it have a specific aim or a general objective? To answer these tough questions, he explores how interpretive strategies from other disciplines--the philosophy of language, literary and musical interpretation, religious interpretation, and general interpretive theory--can augment and enrich our methods of legal interpretation.

As Kent Greenwalt's second volume on aspects of legal interpretation, this book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are "faithful agents" of the legislature or "independent cooperative partners." It concludes that the obvious answer is that neither simple categorization really fits-that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the kinds of instructions contained in statutes. At the general level, the answer is "yes." This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that "canons of interpretation," such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted.The book's second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula.A final chapter compares statutory and common law interpretation, similarities and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles.

This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided.The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable.The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved.

Kent Greenawalt's From the Bottom Up constitutes a collection of articles and essays written over the last five decades of his career. They cover a wide range of topics, many of which address ties between political and moral philosophy and what the law does and should provide. A broad general theme is that in all these domains, what really is the wisest approach to difficult circumstances often depends on the particular issues involved and their context. Both judges and scholars too often rely on abstract general formulations to provide answers. A notable example in political philosophy was the suggestion of the great and careful scholar, John Rawls, that laws should be based exclusively on public reason. The essays explain that given uncertainty of what people perceive as the line between public reason and their religion convictions, the inability of public reason to resolve some difficulty questions, such as what we owe to higher animals, and the feeling of many that their religious understanding should count, urging exclusive reliance on public reason is not a viable approach. Other essays show similar problems with asserted bases for legal interpretations and the content of provisions such as the First Amendment.

Should laws apply equally to everyone, or should some individuals and organizations be granted exemptions because of conflicting religious or moral convictions? In recent years, this question has become intensely controversial in America. The Supreme Court’s ruling on same-sex marriage, in particular, has provoked barbed debates about legal exemptions. At the core of these debates lies the question of whether basic values of equality and nondiscrimination are at odds with the right to live according to one’s religious beliefs.In Exemptions: Necessary, Justified, or Misguided? Kent Greenawalt draws on his extensive expertise to place same-sex marriage and other controversies within a broader context. Avoiding oversimplification and reflecting a balanced consideration of competing claims and harms, he offers a useful overview of various types of exemptions and the factors that we should take into account when determining the justice of a particular exemption.Through a close study of several cases, from doctors who will not perform abortions to institutions that do not pay taxes, Greenawalt demonstrates how to weigh competing values without losing sight of practical considerations like the difficulty of implementing a specific law. This thoughtful guide to exemptions will prove an invaluable resource as America struggles to come to terms with Obergefell v. Hodges, Burwell v. Hobby Lobby, and similar controversies. Exemptions shows how to reach the most just and desirable legal conclusions by respecting those who wish to live according to different fundamental values.

The First Amendment to the United States Constitution begins: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Taken as a whole, this statement has the aim of separating church and state, but tensions can emerge between its two elements—the so-called Nonestablishment Clause and the Free Exercise Clause—and the values that lie beneath them.If the government controls (or is controlled by) a single church and suppresses other religions, the dominant church’s “establishment” interferes with free exercise. In this respect, the First Amendment’s clauses coalesce to protect freedom of religion. But Kent Greenawalt sets out a variety of situations in which the clauses seem to point in opposite directions. Are ceremonial prayers in government offices a matter of free exercise or a form of establishment? Should the state provide assistance to religious private schools? Should parole boards take prisoners’ religious convictions into account? Should officials act on public reason alone, leaving religious beliefs out of political decisions? In circumstances like these, what counts as appropriate treatment of religion, and what is misguided?When Free Exercise and Nonestablishment Conflict offers an accessible but sophisticated exploration of these conflicts. It explains how disputes have been adjudicated to date and suggests how they might be better resolved in the future. Not only does Greenawalt consider what courts should decide but also how officials and citizens should take the First Amendment’s conflicting values into account.

Should "hate speech" be made a criminal offense, or does the First Amendment oblige Americans to permit the use of epithets directed against a person's race, religion, ethnic origin, gender, or sexual preference? Does a campus speech code enhance or degrade democratic values? When the American flag is burned in protest, what rights of free speech are involved? In a lucid and balanced analysis of contemporary court cases dealing with these problems, as well as those of obscenity and workplace harassment, acclaimed First Amendment scholar Kent Greenawalt now addresses a broad general audience of readers interested in the most current free speech issues.

Controversial Supreme Court decisions have barred organized school prayer, but neither the Court nor public policy exclude religion from schools altogether. In this book, one of America's leading constitutional scholars asks what role religion ought to play in public schools. Kent Greenawalt explores many of the most divisive issues in educational debate, including teaching about the origins of life, sex education, and when--or whether--students can opt out of school activities for religious reasons. Using these and other case studies, Greenawalt considers how to balance the country's constitutional commitment to personal freedoms and to the separation of church and state with the vital role that religion has always played in American society. Do we risk distorting students' understanding of America's past and present by ignoring religion in public-school curricula? When does teaching about religion cross the line into the promotion of religion?Tracing the historical development of religion within public schools and considering every major Supreme Court case, Greenawalt concludes that the bans on school prayer and the teaching of creationism are justified, and that the court should more closely examine such activities as the singing of religious songs and student papers on religious topics. He also argues that students ought to be taught more about religion--both its contributions and shortcomings--especially in courses in history. To do otherwise, he writes, is to present a seriously distorted picture of society and indirectly to be other than neutral in presenting secularism and religion. Written with exemplary clarity and even-handedness, this is a major book about some of the most pressing and contentious issues in educational policy and constitutional law today.

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should members of religious sects be able to use peyote in worship? Should pacifists be forced to take part in military service when there is a draft, and should this depend on whether they are religious? How can the law address the refusal of parents to provide medical care to their children--or the refusal of doctors to perform abortions? Religion and the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity. In the first of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on one of the Constitution's main clauses concerning religion: the Free Exercise Clause.Beginning with a brief account of the clause's origin and a short history of the Supreme Court's leading decisions about freedom of religion, he devotes a chapter to each of the main controversies encountered by judges and lawmakers. Sensitive to each case's context in judging whether special treatment of religious claims is justified, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula. Calling throughout for religion to be taken more seriously as a force for meaning in people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.