There is now a considerable body of analytic work examining the norms of criminal conviction at trial, integrating contemporary legal theory, political philosophy and epistemology to consider when a judge or jury should doubt the guilt of an accused. This paper takes up a neglected adjacent issue: when can citizens doubt a conviction returned by a criminal court? This question, aside from being independently important for a general theory of criminal justice, also bears on the perceived legitimacy of punishment and the relationship between individual citizens and state power. I provide an account of the intellectual and moral norms governing such dissent and explain their sensitivity to contingent facts about the jurisdiction in question. One upshot is that even among well-functioning criminal justice systems, the norms for public dissent can vary considerably—and depend on the ‘nuts and bolts’ of criminal process often hidden from public view. Ultimately, few states have sufficiently effective criminal processes to undergird any moral prohibition on dissent against conviction, so long as the intellectual hurdle of responsible inquiry has been cleared.
Raz’s influential notion of exclusionary reasons is a conceptual resource that would allow us to understand the normative nature of important political, legal, and social phenomena such as authority, promises, and rules. However, the existence of second-order reasons has been attacked on motivational grounds. According to this motivational objection, while there are reasons to perform some actions, there cannot be normative reasons about our acting for reasons, since we cannot be motivated to act by them. Here, I defend exclusionary reasons from this motivational charge. I shall argue that exclusionary reasons are able to rightly guide intentional omissions, insofar as belief in such reasons may be linked to states of omissive or negative intentions whose main role is to serve as causal blockers.
There has been increasing scepticism about the meaning, relevance, and normative import of treason legislation. Relatedly, there is scepticism about whether treason constitutes a distinct moral wrong. These worries are often grounded in either the idea that the distinctive wrong is instead in the substantive act that is done with treasonous intent, such as assault or sabotage, or the view that the wrong of treason reflects a conception of the relationship between the individual and the state that is no longer relevant. I defend the idea that treason is a distinctive wrong. Instead of relying on the common thought that treason involves a betrayal, I argue that treason is distinctively wrong because it undermines our ability to fulfil important political obligations. I draw out some implications of this view.
Accident law traditionally awards compensation for lost earning capacity tied to the race and sex of accident victims, resulting in lower compensation for members of lower-earning race and sex groups and higher compensation for higher-earning race and sex classes. Race- and sex-based earnings estimates have become increasingly disfavored in recent decades; however, there is no consensus on what makes race- and sex-based earnings projections morally objectionable or on how to reform them. This essay vindicates a moral objection to the use of race- and sex-based earnings projections in accident law. It argues that a state may not justify damages awards by appeal to the expected future wages of race or sex groups the same state is unjustly depressing or unjustly inflating. This account offers a more fundamental resolution of the race, sex, and compensation problem than existing frameworks. In addition, the view shows that the proper replacement for race- and sex-based projections depends on how injustice shapes the expected earnings of race and sex classes.
This article asks what law should protect when artificial-intelligence-driven digital twins function as machine simulacra. Digital twins are not static models. They are live simulations that interpret, predict, and optimize physical systems. Because their value lies in ongoing performance rather than a fixed work, copyright, patent, and trade secret law fit them poorly. The article argues for a new sui generis neighbouring right centred on performance. To address the artificial-intelligence system’s lack of legal personality, it distinguishes that system as the Factual Performer and the human or corporate controller as the Performance Principal. Using Baudrillard’s theory of simulacra, the article explains how protection can follow the twin from faithful replica to hyperreal model without producing legal hyperreality. Rights remain anchored in human control and responsibility rather than in the simulacrum as a work.
The emergence of the one-system picture is one of the most significant developments within general jurisprudence in decades. The one-system picture promises an account of legal obligations, privileges, powers, and immunities as part of morality. One of its chief contemporary proponents (Greenberg) treats it as thereby offering a new account of legal content, which rivals familiar two-system forms of positivism and antipositivism. The other (Hershovitz) treats it as abandoning the idea of legal content, and thereby ushering in the ‘end of jurisprudence’—that is, leaving jurisprudence as a subject with no object. This essay starts with the observation that the one-system picture promises more than it has provided. We were promised a view about legal obligations etc.; but we were only provided with an account of legal obligations. So, can the one-system picture provide a systematic account? Can it explain all legal norms—including legal privileges, powers, and immunities—as moral norms? I explore two challenges—the problem of inconsistency, and the problem of idiosyncrasy—that the one-system picture faces once it seeks to be systematic.
This article argues that constitutional law is ordered not to the common good simpliciter, but to public justice. Although natural law theory has long identified the common good as the end of law, that concept is too indeterminate to capture the specific normative task of constitutional law in plural and differentiated political communities. By revisiting Aristotelian and Thomistic accounts of the common good and justice, the article argues that justice supplies determinate content to the political dimension of the common good. Drawing on federal and associational theories of political order, particularly the work of Johannes Althusius, it maintains that the state is neither the sole bearer nor the comprehensive administrator of the common good. Constitutional law is therefore best understood as ordered to public justice: the juridical task of allocating authority, securing what is due to individuals and their civil associations, and restraining public power within a constitutional framework.
In this article, I argue that a reconstructive theory of private law, such as that of Dagan and Dorfman’s, ought to more explicitly engage with the process of reconstruction itself. I try to anticipate such a path of inquiry by questioning ‘what’, ‘who’ and ‘how’ is being reconstructed in their relational justice theory of private law. First, I query how the authors construct the object of study, the ‘what’ of private law, which I suggest needs to be (re)constructed both in relation to time and change (Section II). Second, I challenge the authors to take the question of ‘who’ in private law relations more seriously, given that private legal relations are often relations between humans and not so very human participants in private legal relations, that is corporations (Section III). Finally, I ask ‘how’ Dagan and Dorfman construct relationality itself in their account. The focus on poverty, I argue, is a tricky turn, since it neither furthers equal respect (are both sides really treated with equal respect?) nor reform (what is taken for granted here?).
The notion of ‘care’ is invoked within legal doctrine in the law of tort, medical law, and family law. Yet despite its centrality across these doctrinal domains, these invocations have rarely been studied together. This neglect seems to stem from an underlying assumption that ‘care’ refers to fundamentally different things in each context – rendering consolidated analysis unhelpful. This paper challenges that assumption. I argue that, contrary to the standard assumption, these areas of law all invoke distinct tokens of the same conceptual type. To establish this, I begin with an analysis of the ordinary concept of care that draws on literature in care theory, showing that the concept of care tracks three analytically distinct categories: action, attitude, and disposition. I then argue that each doctrinal domain structures legal duties around different facets of this same concept: tort law focuses on dispositions and actions, medical law on actions, and family law on actions, attitudes, and their combinations. A distinctly legal concept of care thus emerges – one that not only invokes the ordinary concept but also actively shapes it.
This paper critically engages with Michael Bratman’s Shared and Institutional Agency, focusing on the theory’s justification for thinking that institutional intentions must be, or rationally ought to be, mutually consistent.
My aim is to evaluate Michael Bratman’s account of social rules—what I shall call the Shared Policy View—by comparing it to a different view—the Normative Attitudes View. In particular, I consider the capacity of both views to address three important challenges. The first challenge is to explain the special normativity of social rules in general. The second challenge is to make room for social rules beyond purely practical rules, such as rules that make demands on how we feel, what motivates us, and how we think or deliberate. The third challenge is to explain the fact that many social rules seem to provide us with substantive reasons to comply with them. I argue that, while the Normative Attitudes View is well placed to meet the first two challenges, the Shared Policy View cannot easily do so; and that while the Shared Policy View might appear to have a clear advantage when it comes to the third challenge, this appearance does not survive closer scrutiny.
Natural resources, especially land, play an important role in many economic problems society faces today, including the climate crisis, housing shortages and severe inequality. Yet, land has been either entirely neglected or seriously misunderstood by contemporary theorists of distributive justice. I aim to correct that in this paper. In his theory of original acquisition, Locke did not carefully distinguish between the value of natural resources and the value that we add by laboring upon them. This oversight led him to the mistaken conclusion that labor mixing gives the laborer an entitlement to both the improvement and the resource. Instead, we should think, following Henry George, that the community is entitled to the economic value of natural resources, because the community created the value of resources, not the individual improver. I discuss an argument from George’s “Progress and Poverty” that selfownership is actually inconsistent with (rather than the ground for, as Locke thought) private appropriation of natural resources. This is because a necessary condition of our equal rights as self-owners is having free access to natural resources. If we do not have such access, George argues that natural resource owners can extract surplus value from their users (though I show why Marx’s belief that capital owners can also extract surplus value is mistaken). Nozick’s infamous argument that taxation is morally on a par with forced labor proves too much for his purposes, since George shows that payment of economic rents to natural resource owners is also morally on a par with forced labor. I then develop my own view of original acquisition, inspired by George, and distinguish the view from left-libertarianism. The self-ownership of improvers gives them an entitlement to improvements that they create. But the self-ownership of everyone else precludes an entitlement to natural resources value. Natural resource rents should not be enjoyed by those who improve the resource, but rather, by all community members in proportion to the share of demand for natural resources they are responsible for. Finally, I move from ideal theory to the real world, and discuss how George’s land value tax could be implemented in practice.
This article develops a diagnostic account of self-cancellation, a distinctive practical failure in which an agent relies on a rule-governed practice while handling a constitutive commitment so that it cannot do its settling work. The defect is not best described as a false belief, a broken rule, or a bad outcome. It is a failure of participation, in that the performance no longer counts, in the relevant sense, as planning, inferring, promising, or legal reasoning. The paper reinterprets Kant’s question What if everyone did that? as a non-moral diagnostic use of the Formula of Universal Law. Universalization is used to test whether a way of proceeding can remain intelligible once it is treated as generally available. On this basis, the article replaces accounts in terms of volitional self-contradiction with a commitment-based diagnosis of practice failure. This diagnosis is then applied to planning and shared agency, Carroll’s regress, and two cases from legal theory, namely Kelsen’s Pure Theory of Law and the role of background standards in legal reasoning.
The rapid and transformative evolution of artificial intelligence—from predictive recidivism algorithms to Large Language Models (LLMs) capable of passing the Uniform Bar Exam—has reinvigorated the ambition to render law ‘computable’. This article argues that this project, even in its most advanced generative forms, rests on a fundamental epistemological category error. We contend that the operational logics of AI—whether the rigid formalism of symbolic systems or the probabilistic mimicry of ‘stochastic parrots’—are structurally incompatible with the nature of legal reasoning. Synthesizing insights from the Anglo-American liberal jurisprudential tradition (Hart, Dworkin, and the Legal Realists), we demonstrate that law is an open system structurally reliant on linguistic purpose, moral commitment, and social context. We undertake a critical deconstruction of contemporary AI paradigms, showing how Generative AI’s ‘hallucinations’ and lack of intentionality represent a failure not of technical performance, but of the communicative engagement required for democratic legitimacy. What is irretrievably lost in the computational translation are the core judicial capacities of practical wisdom (phronesis), narrative integrity (nomos), and situated social intelligence. The article concludes that AI’s ontological limitations, when properly understood, reveal its true role: not to replace the human judge in adjudication, but to serve as an epistemic foil designed to augment, rather than amputate, the uniquely human burden of judgment.
Violations of the rule of law are among the most contested and consequential issues in contemporary public discourse and academic debate. At the core of these controversies lie enduring disagreements about what properly counts as a violation. This article applies analytical legal theory to clarify the debate by introducing a twofold disambiguation of the term ‘violations’ and by developing a typology designed to support decision-makers confronting rule of law challenges. The first disambiguation concerns the object of a violation, namely whether it pertains to the rule of law as a moral–political ideal or its legally enshrined extension. The second disambiguation distinguishes two types of violations lato sensu of the rule of law, namely violations stricto sensu and deficiencies, the criterion being the availability of resources for compliance. Together with two further binary distinctions, the resulting typology of rule of law violations provides a basis for justifying and determining which remedies—ranging from sanctions to measures of institutional support—are most appropriate.
Hanoch Dagan and Avihay Dorfman offer a compelling new liberal account of private law that takes seriously the liberal commitment to self-determination. Their theory takes an illiberal turn, however, by aiming to regulate private relationships by reference to an ethical conception of equality, and by inviting the state to distinguish between important and less important individual projects. Dagan and Dorfman presume that the state can know more than it can or should aim to know about people. By contrast, institutional theories of private law–of the sort that Dagan and Dorfman reject–retain the epistemic humility that is an important element of liberalism.
To commit perjury, you have to say something you believe to be false, not merely suggest it. The paper presents a novel explanation for the divergence between the folk and the legal concept of lying, labeled perjury. Two experiments indicate that lying is a dual character concept: it has concrete criteria of application (saying something you believe to be false) and deeper, more abstract criteria of application, such as the intent to mislead the hearer and extract an unfair advantage. This paper argues that the technical, legal understanding of lying, labeled perjury, is not an entirely new concept that lawyers have to learn in law school. It then proposes new jury instructions that would ensure that lay juries can ascribe perjury in line with the technical definition, rather than with the folk concept of a lie, which could lead to overcriminalization.
Dagan and Dorfman’s recent book, Relational Justice, offers a normatively-imbued account of private law at the domestic level. In setting out this account, Dagan and Dorfman consider aspects of private law theory that extend beyond the purely domestic context. This transnational sensibility culminates in Chap. 15, which argues for redress for corporate abuses of private persons in the Global South through ‘relational justice’. This expanded focus is a crucial and welcome step for private law theory. However, Dagan and Dorfman’s analysis could engage more precisely with the juridical structure of contemporary public and private international law. Carefully parsing this structure allows us to see why the transnational wrongs they point to occur; why rectifying them in the manner they propose may undermine both legal doctrine and important values in public and private international law; and why their proposed solution—an appeal to the ‘jus gentium privatum’—may be ineffective and somewhat unnecessary.
