Little about strict liability has evoked much agreement among commentators except for their opposition to it. Most but not all philosophers of law regard strict liability in the criminal law as unjust. To be sure, the opposition of commentators is highly qualified. Legal philosophers are more tolerant of strict liability in tort law than in criminal law, less vehement when punishments are relatively lenient, and sometimes prepared to allow the exigencies of law enforcement to override considerations of justice. These concessions, however, are made in a general climate of hostility to strict liability.

Clifford Geertz claims that in a well-functioning legal system there should be a fit between what Geertz calls the “if, then” structure of legal rules and the “as, therefore” structure of legal decisions. Put simply, for a system of laws to work, the legal rules used to decide cases must make sense given how one understands the cases to which they are applied, and the resolution of the case must make sense given the legal rule chosen to decide it. There must be, in a well-functioning legal system, a fit, a symmetry, between the rules allegedly used for deciding cases and the actual practice of deciding cases. For Geertz, the following question always makes sense in a legal system: “How, given what we believe, must we act; what, given how we act, must we believe.” Geertz recognizes that his question parallels the sorts of questions that Nelson Goodman asks in epistemology, or that John Rawls asks in ethics, and he embraces what I take to be a Goodmanian, holistic approach to codifying the rules that govern practices.

At its most basic level, autonomy is self direction or self rule. Let us take this as a rough working definition. Thus, anyone else who has (other than advisory) authority over one’s actions would seem to violate or be in a position to violate one’s autonomy. Yet, authority differs from power in that it is legitimized; so that violation is justified (if it is a “violation” at all). Put most simply, either you are autonomous and direct yourself or you yield to authority and surrender your autonomy.

For years Ronald Dworkin has been a leading academic defender of individual rights. The political and jurisprudential theory underlying his defense has had enormous influence. Defense of the rights of homosexuals has been a prominent theme in his writings. In 1966 he published his well-known critique of Lord Devlin’s critical essay on the Wolfenden’s Committee’s recommendations that sexual relations in private between consenting homosexual adults be de-criminalized (reprinted in 1978b, ch. 10). In recent writings, he has condemned key rulings by American courts that denied certain basic rights to homosexuals. References to the rights of homosexuals are made in many of his works. But nowhere does Dworkin present a developed argument for homosexual rights. He appears to think that support for the rights of homosexuals follows naturally from his political-legal theory. But does it? If so, how? And how adequate is such a defense?

In this article, I shall examine sexual orientation as a human rights issue. The reasons why discrimination on the grounds of sexual orientation should be considered an issue of human rights have been articulated by others, and I do not propose to repeat their arguments here. Rather, I seek to examine in a more critical way some of the analytical problems that may arise in fashioning human rights protection. While the substantive goals of human rights struggles are surely commendable—freedom from persecution and from invidious discrimination, or more positively framed claims to the means necessary to live a decent life—the discourse of rights has been the subject of critique, for example, by the Critical Legal Studies movement in the United States. Rights claims, it has been argued, reinforce the separation of the individual from community. The focus on abstract rights undermines the substantive claims of groups and individuals within society by reifying formal (but ultimately alienating) individual rights. Of course, the CLS critique itself has been subjected to sustained criticism, particularly from the schools of Feminist Legal Theory and Critical Race Theory (and the intersection of the two). The CLS attack on rights is criticized for its failure to recognize both the substantive and the symbolic impact of concrete rights victories. Furthermore, it has been argued that rights struggles can be contradictory and complex.

There is a view of Aristotle’s conception of corrective justice which has enjoyed some following among tort theorists in recent years, according to which corrective justice is distinct from distributive justice and entirely independent of it. The distinctness of the two is, of course, asserted by Aristotle in a well-known passage in the Nicomachean Ethics, and no one could seriously doubt that he does take the forms of these two kinds of justice to be distinct:

My contention in this paper is that many of our commonly accepted ideas about property are defective. But these deficiencies are not just simple, surface mistakes that could be cleared up easily. They stem from a flawed conceptual framework used in making sense of and justifying property relationships. I also contend that this flawed conceptual framework maintains property relationships that are unjust. These property relationships produce an unequal distribution of wealth, status, and power, as well as reduced opportunities for autonomy and self-development. This is unjust because, I believe, no satisfactory justification has been given for this inequality. Exposing some weaknesses of this conceptual framework is thus a step in promoting more egalitarian property relationships.

This celebration of fidelity to oneself gives voice to a central theme of modern consciousness: the search for authenticity. The idea that there is an ‘intimate self’ whose needs cannot be fulfilled by following ‘borrowed truths’ is a familiar modern notion and one that contrasts sharply with traditional outlooks. In many pre-modern societies value was believed to be less responsive to the individual: gods, natures, or history were the sort of things that inscribed value on states of affairs, and thus on our lives. Living well was not, therefore, a matter of being true to ourselves, but being true to our creators, natures, or traditions. Moral truths were precisely those things that were borrowed; that was what made them true

One of the most important and divisive issues facing heterogeneous or culturally diverse states—and most states are culturally diverse—is the relation between these different cultures and the state.

This question was raised initially in contemporary liberal political philosophy in terms of the fruitful debate between liberals and communitarians. Sandel, for example, criticized Rawls’s A Theory of Justice and, by extension, all liberal theories for falsely abstracting from conceptions of the good, abstracting from culturallyspecific conceptions, and grounding his liberal principles in terms of an abstract Kantian individualism. Liberal theorists countered by complaining that communitarians falsely conceived of a single homogeneous community. Although Rawls’s revised defense of liberal justice in his 1993 book Political Liberalism does not refer directly to the liberal-communitarian debate, nevertheless, his new grounding of liberal political principles, as principles which would be acceptable to individuals with diverse conceptions of the good, seems to justify liberal principles in terms of contemporary conditions, and, at the same time, challenges the relevance of those theories which appeal to any notion of a homogeneous ‘community’.

Outing is conceptually linked to the notion of the “closet”; “coming out of the closet” amounts to publicly acknowledging one’s homosexuality, or at the least one’s participation in sexual activities with persons of the same sex. Outing makes someone’s homosexuality public; they are forced out of the closet, so to speak. Richard Mohr has described it this way: “outing [makes] publicly acknowledged the sexual orientation of a homosexual without regard to whether the person is willing to have this information publicly acknowledged”. Leslie Green provides this definition: “the practice of publicly exposing someone’s presumed sexual orientation, against his or her will, in circumstances where the revelation may be damaging.”

—Ursula Le Guin

Law controls sexuality not only by its coercive powers, but also through its discursive constructions. While there are other social forces and influences in play, sexual identities and sexual practices are framed within the ample reach of law’s linguistic domain. As well as enforcing prevailing moral norms and deciding the scope of socially-validated sexual behaviour, law also determines what counts as sex in the tableau of human behaviour. Although the relationship of law, sexuality and sex is always ideologically fraught, it is particularly so in regard to graphic representations of sex and sexuality. The debate around this so-called pornography hits a very sensitive nerve in the body politic. Indeed, in recent years, few social practices have managed to arouse as much intellectual angst and political anger as pornography. In part, this is because the debate seems to cut across traditional political lines; it sets traditional enemies against each other and fosters strange alliances among them. None of this should be too surprising as pornography touches profound issues which strike at the very heart of those dilemmas, difficulties and denials that comprise the human condition.

In his The Moral Limits of the Criminal Law: Harm To Self, one volume in what is arguably the most impressive and thorough statement of liberal political philosophy to date, Joel Feinberg claims that there is a problem of reconciling the reasonableness of our concern for people who endanger themselves with our repugnance for paternalism:

In 1989, Jacques Derrida was the keynote speaker at a Cardozo Law School symposium entitled “Deconstruction and the Possibility of Justice.” Derrida’s speech was entitled “Force of Law: The ‘Mystical Foundation of Authority’” (hereinafter, “Force of Law”). As the title of the symposium indicated, the conference was organized to address, and perhaps quell, the widely-held impression that deconstruction lacks a coherent conception of justice. Derrida’s lecture is a bold response to those critics who have charged deconstruction with political nihilism, irrationalism, and conservatism. Surprisingly, in “Force of Law,” Derrida comes very close to setting up a full-scale theory of justice and an accompanying account of law. And because Derrida’s recent work affirms the account of justice set forth in “Force of Law,” his lecture merits a close reading.

In his recently published book Norm and Nature, Roger Shiner contends that legal positivists cannot account adequately for the internal point of view which characterizes legal agents’ attitude of commitment to legal norms. Shiner expects that an adequate legal theory will “reproduce the way in which law functions in the lives of those who have the internal point of view to law” (NN, 137). He calls this the “reproduction demand.” In his analysis of Joseph Raz he claims that such “sophisticated positivists” cannot maintain a theory of legal statements which are “detached” from moral commitment to the legal norms they refer to. The failure of the theory of detached legal statements leaves positivists without an adequate account of the necessarily personal aspect of the internal point of view in legal systems—a point of view which according to Shiner requires normative commitment to the justification of the legal norm.

A woman awakens surrounded by four men who remove her from her bed and take her to another room. Despite protests and physical resistance, the men engage in a series of sexual acts with her. She files a complaint and the men are charged, tried, and convicted. They appeal, claiming they believed she was agreeable to their actions. They had been told by her husband that she had unusual tastes in sexual matters, and liked simulated gang rape. Because they had thought she was willing, they had not intended to rape her and therefore should not have been convicted.

I want to say something about Hobbes by way of a response to Matthew Kramer in his article, “The Missing Terms of the Hobbesian Social Contract”. Briefly, Kramer argues that Hobbes’ idea of the social contract is incoherent in that the linguistic and experiential conditions and capacities which could give rise to such a contract are such that an effective contract would already have to be in place. This reductio ad absurdum of Hobbes’ argument has some illuminating consequences: one is that this apparently fatal attack on the coherence of the Hobbesian contract should disturb us enough to reconsider the way in which we read Hobbes and other Social Contract theorists, rather than simply accepting the ad hominem force of Kramer’s interpretation of Hobbes.