The Timing of Lawmaking
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The Timing of Lawmaking

Edited by Frank Fagan and Saul Levmore

Legal reasoning, pronouncements of judgment, the design and implementation of statutes, and even constitution-making and discourse all depend on timing. This compelling study examines the diverse interactions between law and time, and provides important perspectives on how law's architecture can be understood through time. The book revisits older work on legal transitions and breaks new ground on timing rules, especially with respect to how judges, legislators and regulators use time as a tool when devising new rules. At its core, The Timing of Lawmaking goes directly to the heart of the most basic of legal debates: when should we respect the past, and when should we make a clean break for the future?
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Chapter 11: Janus-faced law: A philosophical debate

Martha C. Nussbaum

Abstract

Should law look backward toward time-honored traditions, or forward toward the promotion of social welfare? In this chapter I study the debate between Burkean traditionalists (along with their legal allies) and the British Utilitarians, who find in tradition not wisdom but irrationality and exclusion, and who propose to remodel law along lines of scientific rationality, counting each person equally and promoting aggregate welfare. I examine the strongest arguments for each side and propose a compromise. Keywords: common law, Utilitarianism, Burke, Bentham, Mill, Sidgwick, Holmes, Cardozo

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