What is unprincipled adjudication and when, if ever, is it justified? In addressing those questions, this essay attempts to complete a project begun with Professor Fred Schauer.
Abstract Enforcement is costly, so sometimes states choose not to enforce their laws. We study this choice under rules and under standards. We show that nonenforcement of rules sends a relatively clear signal about state capacity. Regulated parties can use this information and violate law to some extent with impunity. Nonenforcement of standards sends a noisier signal, and this uncertainty may cause regulated parties to comply with law even though the state lacks capacity to enforce, a surprising implication. According to conventional wisdom, standards are costlier to enforce than rules, meaning a switch from rules to standards should decrease compliance. However, we argue that standards, by obscuring the state’s capacity, can increase compliance. We identify the characteristics of standards that yield these effects, and we show that the logic generalizes to the complexity of law as well as its precision.
Philosophy needs a methodology, including rules about burden of proof, in order to resolve many of its classic issues. Law might seem to provide a helpful model for assigning burdens of proof. However, candidate rules that distribute burden of proof according to form, degree of belief, and consequences all fail to help when inspected closely. This gap makes it difficult to see how to resolve many of the most important philosophical issues.
According to legal positivism, legality is socially constructed. Traditionally, the view maintains that legal validity is based on social conventions rather than morality. Critics, most notably Ronald Dworkin, argue that it cannot account for theoretical disagreement over criteria of legal validity. In this article, I examine how theoretical disagreement bears on legal positivism by presenting a specific version of Dworkin's Argument from Theoretical Disagreement ("ATD") as applied to positivism, his primary target. I review leading positivist strategies for accommodating or avoiding the problem. I then challenge the ATD's underlying assumption-shared by orthodox positivists-that conventional recognition of valid law requires agreement on interpretive criteria. Instead, I argue that practitioners conventionally recognize valid law in common in ordinary legal practice through closure procedures rather than interpretive consensus. Finally, I show how this account supports a more accurate reconstruction of legal reasoning, argumentation, and practice than Dworkinian and existing positivist alternatives.
There has been a recent turn toward a new form of nonpositivism in Anglo-American jurisprudence. This paper focuses on the theories articulated by Mark Greenberg and Scott Hershovitz (I label their views as the "New Legal Anti-Positivism" or NLAP). NLAP argues that questions about legal rights and obligations are moral questions; that legal reasoning is a form of moral reasoning; and that there is no domain of legal normativity that stands independently of moral considerations. This paper doesn't offer a decisive argument against NLAP. Instead, it argues that NLAP is distinctively American: it relies on certain aspects of American legal practice that are not representative of other legal systems. To the extent that general jurisprudence attempts to offer a relatively general theory of law, theories that can accommodate variations across legal cultures are better than those that cannot. This is a relevant consideration against NLAP.
This Article develops a liberal theory for one of the most discussed topics of contract law (its rules of interpretation) and one of the most neglected (implication). It considers these topics in tandem because they both address contractual obligations that ostensibly flow from the parties' own choices. We reject the view which misrepresents the task of distilling these choices as value-neutral, and offer in its stead an approach that grounds interpretation and implication on liberal contract's commitment to proactively support people's joint plans, while securing contract's compliance with relational justice. This account offers conceptual clarity, vindicates and elucidates significant parts of contemporary law, and suggests several pathways for reform. Notably, it allows us to sketch a liberal doctrine for the interpretation of contractual writings in which at least one party is an individual, rather than a legally sophisticated wealth-maximizing firm.
When do laws and policies that do not explicitly treat people differently on the basis of legally protected traits like race and sex nonetheless constitute disparate treatment on these bases? According to U.S. constitutional law, they do so when "facially neutral" laws are both enacted for impermissible reasons and also produce a discriminatory effect. To date, the first element of this claim - impermissible intention - has attracted significant attention. However, its second element - discriminatory effect - has been largely ignored. Yet it is critical that we better understand what discriminatory effect requires, as competing tests animate debates in Circuit court cases and the issue has recently been flagged by Justice Alito. This Article takes up the task. It explores the normative disagreement that underlies the controversy regarding how to assess whether discriminatory effect is present and diagnoses the genuine moral conflict that any test for discriminatory harm must navigate.
Freedom of self-expression is an elusive value. In ordinary political discourse, the value of self-expression seems obvious. But it is surprisingly difficult to specify freedom of self-expression without collapsing it into the value of freedom in general. And reducing freedom of self-expression to a special case of freedom of speech yields a Procrustean and underinclusive account. This paper develops a novel account of freedom of self-expression which avoids both pitfalls. First, I show that the ubiquity of self-expression as a phenomenon is compatible with the normative distinctiveness of freedom of self-expression as a value. Second, I show that freedom of self-expression requires, at minimum, freedom from content-based limitations on the exercise of personal style. Third, I ground the moral significance of freedom of self-expression in two distinct interests: in autonomy of self-definition, and in opportunities for recognition. Ultimately, freedom of self-expression emerges as a distinct and coherent moral and political value.
In recent years, scholars argue that, although the principle of fair play is able to establish obligations to reciprocate for benefits received, these do not include political obligations. They contend that recipients themselves should be able to determine the form their recompense takes. I examine different cases of benefit provision and identify instances in which the principle of fair play does not allow such discretion. An important consideration is epistemic difficulties that can be avoided only if citizens accept the judgment of law and follow it. In familiar political obligation cases, disagreements about benefits and burdens should be resolved by democratic procedures. Following decisions arrived at is necessary to avoid problems of two kinds: moral, making sure burdens of cooperation are distributed in ways that are fair to all participants; and empirical/sociological, making sure important benefits are provided.
Can the dead subject later generations to their will? Legal and political philosophers have long worried about this question. But some have recently argued that subjection between generations that do not overlap is impossible. Against these views, we offer an account of this kind of subjection and the conditions under which it may occur-the Mediated Subjection View. On this view, legal subjection between nonoverlapping generations occurs when past generations seek to guide the future's behavior, and legal officials in the future deem the norms and legal frameworks inherited from the past as reason-giving and action-guiding, and have the effective power to enforce them. Under these circumstances, we argue, future legal officials act as intermediaries of the past, enabling past generations to subject later ones to their laws. We first inspect the normative significance of subjection and introduce and motivate the Mediated Subjection View. We next scrutinize four objections to the possibility of legal subjection between nonoverlapping generations and show how our view can answer them.
The reason model of precedential constraint is supposed to generate a stricter doctrine than the minimalist result model. In the standard setting in which these models were originally formalized, that is exactly what we find. Surprisingly, however, in the more complex dimensional setting, the models become indistinguishable. In this paper, we provide an illuminating explanation of the collapse. We also shed light on recent proposals to modify the reason model, or the underlying dimensional setting, in order to avoid it. Finally, we show how the models can be made to collapse even in the simpler standard setting.
This paper is about whether we can revise the highest rule in a legal system using legal reasoning. HLA Hart and Alf Ross argued that we can't: either the highest rule is unchangeable, or it can only be changed in a revolution-a merely causal change, not a legal one. I argue, drawing on an idea from Hartry Field about logic and epistemology, that we can. The emergence of the conclusion, within a legal system, that the highest rule should be replaced by something else can provide a legal reason for the change. In making the change, we act for reasons internal to the legal system. This allows us to make sense of the distinction, recognized by legal subjects, between a revolution and a legal change of sovereignty.
This article proposes that theoretical debates over the Rule of Law can be revitalised through careful focus on methodology. First, it contends that the prevalent methodology of theory-construction is a rationally reconstructive form of conceptual analysis which makes deadlock practically inescapable. The methodology requires the invocation of deeply controversial conceptual cross-references: to reconstruct vague intuitions about the Rule of Law, theories are compelled to invoke other concepts over which deeply engrained disagreements persist. Second, turning to the possibility of overcoming or mitigating deadlock through critical argument, it argues that the capacity of critique to pose meaningful challenges to rival theories turns on its treatment of its target's conceptual cross-references. Dissonant critique, which is premised on the rejection of a rival theory's defensible conceptual cross-references, is seldom productive. Internal critique, which proceeds from rival theories' conceptual cross-references, poses more meaningful challenges and is more philosophically productive.
Carmen Pavel has recently provided an illuminating analysis of the limits of anarchic legal orders and, by extension, current arrangements for international law (Pavel 2021). Central to her argument is an account of the structural flaws in market anarchist institutions. The current paper argues that market anarchist theorists have robust responses to at least some of Pavel's criticisms. From the anarchist viewpoint, statist approaches to legal enforcement have problems that are at least as "structural" as those Pavel attributes to anarchism. The paper seeks to articulate this anarchist position and clarify the ways in which it complicates some of Pavel's claims. It then offers some suggestions regarding what insights this market anarchist perspective might offer for our understanding of international law.
Take two positions, both of which we take to be popular ways of thinking about law. First, some norm N is part of the law only if, and in virtue of, N being ultimately recognized or validated by the rule of recognition. Call this Hartian Orthodoxy. Second, statements about legal rights are best understood as claims about the existence of moral rights according to law. Call this legal perspectivalism. Here we show that the two are incompatible. Our argument is that, to account for certain arguments that mix legal and factual claims, perspectivalism must close the legal perspective according to some inference rule. As it happens, however, the only defensible candidates render perspectivalism incompatible with Hartian Orthodoxy.
Norms of standing are puzzling. Your friend asks you for a favor. In the past, that same friend has failed to grant you similar requests. It seems that under such conditions, you are allowed to disregard your friend’s request as a reason for granting it, on the grounds that he lacked standing to make the request. Yet, given that friends’ requests are reason-giving, your license to disregard that (valid) reason is mysterious. We aim to dispel this sense of mystery by conceptualizing standing norms as procedural norms. Procedural norms are second-order (outcome-neutral) norms about how to engage with other norms. And norms of standing are a particular type of procedural norm, namely procedural exclusionary permissions. More generally, understanding standing norms as part of the “procedural branch” of morality exemplifies how the interplay between substance and procedure can clarify and demystify certain puzzles of moral discourse.
This paper analyses the recent viral #MeToo and #ShoutYourAbortion campaigns and argues that examining them illuminates our thinking about privacy and standing.The paper argues that one of the aims of these campaigns was to debunk the view that women did not have standing with respect to matters concerning sexual harassment and reproductive care. The myths the campaigns sought to discredit – myths about sexual harassment and assault and abortion – involve victim-blaming, and one thing we do when we victim-blame is deny that the victim had standing. This paper also argues that women proved they had standing through these campaigns by revealing what was private. This is, I argue, a way of ‘exploding’ the private sphere as MacKinnon famously put it. By looking to these campaigns, we can see that their strategy relied on the value of privacy.
In this paper, I argue against a widely held view about interpersonal moral relations inspired by Benjamin Cardozo’s landmark judgment in Palsgraf v Long Island Railroad Company , which I call the Relational Fault Requirement. The requirement holds that in order for A to commit a directed wrong against B, A must be at fault in relation to B. I present two ways of understanding wrongs that violate this requirement: (1) that one is wronged if one is harmed by a wrongful action, and (2) that one is wronged if one is harmed by a wrongful action and the outcome one suffers is sufficiently similar to the grounds on which the action is wrong. Accepting either of these ideas requires rejecting the Relational Fault Requirement and encourages us to rethink the core elements of directed wrongdoing.
Minors should not be punished as harshly as adults for any given crimes they commit. The most common explanation of why is that youths have diminished responsibility-relevant capacities. Recently, Gideon Yaffe has defended the revisionist view that the reason to give juvenile offenders a break in sentencing derives from their political disempowerment. Here, I defend a third alternative: youth is a developmental stage between legal infancy and adulthood during which people are owed special opportunities to cultivate their moral capacities and otherwise fortify themselves against engaging in criminal wrongdoing. Given that minors have not yet received all those opportunities they are owed, they have a claim to mitigated punishment on account of lacking a fully fair opportunity to protect themselves against criminal liability and punishment. They also have distinctive grounds to object to any punishment that would thwart their continued receipt of the developmental opportunity they are owed as youths.
Many claim that if a state is responsible for structural injustice, then that state lacks the standing to hold marginalized offenders to account. Call this the compromised standing claim. I argue that this claim sits in tension with a further assumption: that states hold offenders to account in their people’s name. Specifically, I argue that when A holds B accountable in the name of C, A’s own hypocrisy and complicity are not sufficient to undermine her standing to hold B accountable. This means that there exists a gap between a state’s responsibility for structural injustice and its compromised standing. After motivating this challenge, I consider one response according to which the people have lost their standing with respect to marginalized offenders and that the state, qua representative, inherits the standing of its people. I propose two strategies for making this response precise and argue that neither can vindicate the compromised standing claim in its standard form.
