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Law in a Democratic Society

Law in a Democratic Society
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Delightfully unpredictable and challenging
“These essays suggest that the rule of law is not merely theory, but rather consists of an extraordinarily complex set of attitudes, institutions and practices... It breaks the ordinary molds, and is delightfully unpredictable and challenging.”–Russell Hittinger, Philosophy of Law, Catholic University of America

“Synoptic knowledge...[the] mission that philosophy originally addressed...is now recovering through the work of critical and integrative philosophers such as...Morton Kaplan...Science, Language and the Human Condition is a remarkable and challenging book”–Patrick Heelan, SUNY Stony Brook, Philosophy of Science

A splendid pedagogical instrument
“One is amazed by his [Kaplan’s] ability to present diverse modes of thought with clarity and integrity the book is at once a stimulus to those who have explored at least some of the same ground and a splendid pedagogical instrument.”–Jude Dougherty, Catholic University, Philosophy, The Review of Metaphysics

...related in a uniquely reasonable way
“The analytical pragmatic approach so nicely expounded in...Science, Language and the Human Condition seems to me (as an active scientist in Chemistry and Life Science) to relate philosophy, science, and the human condition in a uniquely reasonable way.”–Peter Mitchell, NobelLaureate, England

Greatly welcomed
This book is to be greatly welcomed, both for its following the continental tradition of boldly ignoring academic boundaries and for its uncontinental use of a clear and readable style...”–Edmond Wright, Philosophy, Oxford University

A real help
“Kaplan...expounds the fundamentals of meaning and reality in a way which can be of real help.”–Georg Sussman, Theoretical Physics, University of Munich

Law in a Democratic Society is a provocative book that is sure to bother most holders of conventional views, whether liberal or conservative. Kaplan writes from a philosophical orientation and a view of democracy that eschew simplistic assumptions.

Kaplan is a firm opponent of the doctrine of John Stuart Mill that one should be free to do whatever does not injure others. In the chapter entitled “The Right to be Left Alone is the Right to be No One,” he argues that Mill misunderstood the ways in which the mind is formed, character gains integrity, and society remains functional.

He finds Roe v. Wade to be bad law and bad public policy. But he also holds restriction of abortion to rape, incest, and life of the mother to be bad public policy, although it would be good law. Although he supports the death penalty, he believes those convicted under it have a constitutional right to adequate counsel and also believes that a life sentence without the possibility of parole is a wrong. He attacks the Court for its excessively technical restraints on habeus corpus and favors criminal penalties against prosecutors who withhold exculpatory evidence.

Law in a Democratic Society includes a new, but highly plausible interpretation of the Ninth Amendment that is not subject to Judge Bork’s stricture of open-endedness. Kaplan believes it is constitutional to protect the flag against desecration, but argues that dissenters should be allowed to tie a banner with “shame” on its staff.

Kaplan argues that the president has not merely the right but a duty to lie to Congress under some exiguous circumstances affecting the national interest. However, he also believes that cooperation with Congress is usually better than an abstractly superior policy.

The author’s conclusions are based upon a complex web of evaluations and factual judgments that no other person can share in their entirety. Therefore, thoughtful readers will disagree with at least some of his conclusions, even when they share his general orientation. However, he would be disappointed if he has not shaken even readers who do not accept his general orientation in some of their previous judgments.

The reader of Law in a Democratic Society will find that Kaplan brings this synoptic approach to an area in desperate need of theoretical foundations.

Table of Contents
Part One: Toward a Philosophy of Democracy
1. The Philosophical and Moral Preconditions of Democratic Theory
Part Two: The Rule of Law
2. The Rule of Law
3. Theory and Law
4. Judge Posner’s Jurisprudence
5. A Short Note on Dworkin’s Concept of Integrity
6. Selective Prosecution vs. Selective Exculpation
Part Three: The Constitution and Privacy
7. The Right to Be Left Alone Is the Right to Be No One
8. Character and a Life Worth Living: A Reply to Davies
9. The Vexatious Issue of Privacy
10. Privacy and the Supreme Court
11. The Complex Case of Abortion
12. Comments on Moore, Sawyier, and Dowd
13. O’Connor, Souter, and Kennedy on Abortion
14. A Different View of the Bork Affair
15. The Georgia Sodomy Case: Failure of Constitutional Discourse
Part Four: First Amendments Rights
16. Freedom of Speech: its Constitutional Scope and Function
17. Art ‘Censorship’ and Constitutionality
18. Confidentiality and University Appointments
19. Politically Correct Thinking and Free Speech
Part Five: The Separation of Powers
20. The Supreme Court: How to Preserve Constitutional Checks and Balances
21. The Separation of Powers and the Control of Foreign Policy
22. Special Prosecutor or Ombudsman
Part Six: The Interpretation of Documents
23. The ABM Treaty: A Reply
1. On The Nature of Reality
2. The ABM Treaty

MORTON A. KAPLAN is distinguished service professor emeritus at the University of Chicago and editor and publisher of The World & I, the monthly publication of the Washington Times Corporation. His writings in political theory, philosophy, and law have been translated into numerous western and non-western languages. His major work in philosophy is Science, Language and the Human Condition.

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