In recent years, there has been tremendous interest in the contributions of the great German philosopher Immanuel Kant to on-going debates about the appropriate nature of international justice and law. The end of the Cold War, for example, seemed to bring with it promises of greater international cooperation of the kind envisaged by Kant. Furthermore, those interested in the more explicitly moral aspects and potentialities of international law, such as those regarding human rights protection, have looked to Kant for comfort and inspiration in the face of strong pressures from doctrines dismissive of such aspects, such as law-and-economics and the statist strictures of realpolitik.

There has, however, been widespread scholarly disagreement over Kant’s precise heritage in this regard: some, for instance, have found in Kant’s international writings a harbinger of world government while others have criticized Kant for faihng to specify any concrete powers for his fabled cosmopolitan federation; some have accused Kant of sacrificing his exalted moral principles on the dubious altar of state-centred expediency while others dismiss Kant as one of the most naively optimistic, and hopelessly moralistic, international thinkers ever; and, finally, some have accused Kant of glorifying the resort to warfare while others insist that Kant actually advocated “an extreme pacifism.” There is, in short, a ferocious and complex debate regarding which set of ideas can properly be called the “Kantian” view of these foremost issues of international law and what, if any, value can be attached to it.

Despite the tremendous literature that has sprung up concerning Hart’s The Concept of Law, one very important feature of the work has been somewhat overlooked: its methodological underpinnings. While Hart himself says The Concept of Law may “be regarded as an essay in descriptive sociology”, this claim has not received adequate philosophical examination. Though a dedicated philosophical positivist, the distinctive feature of Hart’s legal philosophy – the internal aspect of rules – requires a social science methodology that moves him in the direction of hermeneutics. In defending the importance of the internal aspect of rules against the predictive theory of Scandinavian Legal Realist Alf Ross, Hart argues that without the internal aspect, one

A famous libertarian argument is that any allocation of property is just, if it is the result of legitimate original acquisitions and legitimate transfers (‘justice in holdings’). However current ownership of property rarely follows ‘justice in holdings’. This creates a dilemma for libertarianism. If libertarian principles point to protecting current holdings, the result is a violation of ‘justice in holdings’. If the libertarian position requires that only holdings resulting from justice in holdings are legitimate, this will entail a policy of rectification and redistribution. Three major libertarians attempted to offer solutions to this problem: Nozick, Narveson and Epstein. The goal of this essay is to demonstrate that their solutions face two challenges. First, their solutions come into conflict with certain core libertarian principles. Second, their solutions are so different from one another as to be incompatible with each other. This demonstrates that libertarianism is struggling with a fundamental challenge, and a satisfying solution is yet to be suggested by libertarians.

Philosophy harbors famous divides: utilitarians confront Kantians; communitarians oppose libertarians; and, in legal theory, natural law theorists debate positivists. Explorations into these divides typically proceed with one of three goals in mind. First, one may aim for a position on one side, advancing arguments that reveal new strengths in the position or expose new weaknesses in the opposing camp. (One camp is better.) Second, one may try to bridge the gap by showing that apparently opposed positions share unsuspected connections that reveal them to be links in a common enterprise. (Both camps occupy the same ground—there is no divide.) Finally, relying in part on the fact that these debates seem interminable, one may argue that the dispute is meaningless—a reflection of some misguided theoretical or linguistic assumption that, once exposed, reveals the entire enterprise to have been so much wasted energy. (There is no ground here for either side to camp—move on to something else.)

In the first part of the article it is argued that a debt, which is generally taken to be a standard example of a Hohfeldian right-duty relation, is properly understood as a power-liability relation, although a separate right-duty relation can arise in respect of it. This understanding provides a solution to a problem devised by MacCormick and discussed in the jurisprudence literature concerning a right to a payment from the estate of a deceased person. The main part of the article is concerned with the restitutionary claim to recover money or property invalidly transferred, and it is argued that this claim is also a Hohfeldian power, not a right correlated with a duty to return the money or property. The recipient’s liability to the exercise of the power is to be distinguished from his or her duty to return or to preserve the money or property invalidly transferred. This analysis provides a solution to the controversy in the literature over the strict liability and fault-based approaches to restitutionary claims, and it explains and supports the traditional understanding of the equitable proprietary claim and the claim for knowing receipt. The discussion leads to some consideration of the harm principle and duties of positive action.

IzhakEnglard, a prominent tort scholar and a former justice of the Supreme Court of Israel, has dedicated the last few years to an unprecedented research project, aimed to “retrace the long and complex history of the Aristotelian conceptual distinction between distributive and corrective justice from antiquity to the present day.” Modern legal theorists are well versed in the Aristotelian concepts. But although these concepts have engaged “the most brilliant philosophical, legal, and theological minds for generations,” the millennial treatment of the Aristotelian distinction has been disregarded in recent times. Englard’s recently published book brings the cumulative knowledge to the attention of contemporary thinkers, offering an opportunity to enhance and deepen ongoing jurisprudential discourse.

Englard has structured the book chronologically (with a single exception), on the grounds that a topical arrangement would be impractical due to its complexity. Nonetheless, one can break down his sequential analysis of discrete manuscripts and extract fascinating inter-temporal debates on concrete questions that have occupied the minds of Western thinkers for centuries. This Critical Notice focuses on one of the main themes that run throughout the book, and may be of the greatest importance to contemporary legal theorists, namely the place of retributive (punitive, vindictive) justice within the Aristotelian framework. Following a short presentation of the Aristotelian text, this Critical Notice utilizes Englard’s painstaking study to systematically evaluate four possible attitudes to the place of retributive justice vis-à-vis the Aristotelian forms: (1) retribution is part of corrective justice (the Thomist position); (2) retribution pertains to distributive justice (the Scotist position); (3) retribution combines both forms of justice; (4) retribution is a third form of justice.

The concept of promise stirs many to write. Among ethical theorists, a cottage industry flourishes, devoted to answering Hume’s skeptical questions: What are promises? and Why are they binding? Among jurists and legal philosophers, the leading questions have been: When should promises be enforced? and What is the relationship between promissory and other forms of obligation? Among linguists and philosophers of language, the focus is different still. These scholars ask: What is the logical structure of the speech act of promising? and To what extent is promising a universal linguistic phenomenon?

This widespread interest in promises and promising is driven by several factors. One is a belief that the moral and political stakes are high. Promising is not only a common way by which we come to have obligations. It is the simplest, most direct, and most individualistic way in which we voluntarily come to have obligations. If one wishes to account for social, political or moral obligation in a way that maximizes the scope of individual liberty, one likely will focus on promissory obligation and its potential to serve as basis for more complex—even non-voluntary—types of obligation.

Another factor contributing to the interest in promising is the emergence of speech act theory as a framework for philosophical, linguistic, and to some extent jurisprudential, analysis. Speech act theory treats language as a system of verbal acts that effect changes in the world. A person cannot utter “Let there be light,” and bring it about that there is light. But he might be able to utter “I hereby declare you husband and wife” and bring it about that Jones and Smith are married to each other. This perspective on language quickly leads to an interest in promising, since promising appears to be one of the most straightforward ways of altering the world through words. What seems simpler than changing one’s relationship by uttering “I promise to ϕ”?

The incommensurability of values thesis is widely regarded as an effective and highly detrimental line of criticism against utilitarianism. The article begins by providing some general background about the development of the incommensurability thesis, as used both in mathematics, in the philosophy of science, and, most importantly, in moral and political philosophy. It then moves on to clarify the alleged importance of the incommensurability of values argument as an objection to utilitarianism and to distinguish two different meanings of that argument (labelled incomparability1 and incomparability2). The main part of the article provides an analysis of these two alternative meanings. Incomparability1 (the claim that a particular scale is either not applicable, or irrelevant, or arbitrary), though perfectly valid, is shown to be misguided as a criticism of utilitarianism. Incomparability2 (the claim that some options cannot be translated into or associated with particular locations on the relevant scale in a way that would generate positive value relations) is shown not to pose any real difficulty to utilitarianism by demonstrating that incomparability of that kind is, as a matter of fact, indistinguishable from the notion of rough equality and that, accordingly, indifference towards the choice between the incomparable2 competing options is justified.

Writing on punishment can be a punishing experience. We face two kinds of problems, each threatening to make penal reflection a futile exercise. Primarily, there is a body of research and literature which might be called hyper-critical; this research points to the weaknesses of all theories of punishment but fails to replace them by an adequate theory, either because it cannot solve the problems which it raises or because it does not want to, punishment being seen as a concept that is so fraught with difficulties of all kinds that it ought to be altogether rejected. There is, on the other hand, a second trend in the literature, which is more positive and which offers a new theory of punishment. However, what is gained at the level of theory is lost at the level of application: not only is current penal practice unrelated to the proposed ideal, but its proponents do not see at present how we should proceed in adjusting practice to achieve this ideal.

The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing (as Robert Alexy admits) and the grounds as to why balancing is appropriate (deontological constraints). Absent the latter type of reason, the application of constitutional principles remains a pure instance of balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical (legal) reasoning. This practice exemplifies what I shall dub the structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engaged reflectively with practical questions (questions about rights are par excellence questions of this type). The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generates prima facie reasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall.

Alternative dispute resolution has the potential to be many things to many people, although it cannot, of course, be everything to everybody. A careful reflection on the appropriate role and scope of alternative dispute resolution will evidence that it has much to offer the legal profession and the legal system. For one thing, it can rejuvenate the practice of law for its practitioners, being both fun and fascinating. It can also help to improve the public perceptions of lawyers, which may be sinking to all time lows. One way of approaching the topic is to suggest that lawyers need alternative dispute resolution—they need it both to enhance their public image and in order to drum up new business opportunities. Another way of approaching the topic is to focus on the contribution of treatments of alternative dispute resolution to the “growth of the modern social scientific study of law.” Studies along these lines may emphasize the development of the Alternative Dispute Resolution movement in terms of attempts to “recast the market for dispute resolution services by different interests attempting to advance their own professional projects.”.

Yet a different way of examining alternative dispute resolution is to explore the self perceptions of its practitioners and theorists—what they think it has to offer to its consumers and society at large. Alternative dispute resolution certainly can provide a fertile source of ‘satisfaction’ to the parties to disputes. The “mediation alternative”, for instance, is said to provide a more complex form of ‘satisfaction’, one in which the needs and interests of the parties determine the final outcome. It is not only that there are some disputants—who currently are not aware of, or encouraged to pursue, opportunities to resolve their disputes by negotiation or mediation—who would benefit from access to ADR. It is also that even those who might fail to reach agreement if they tried negotiation or mediation would still benefit from the attempt and may be less likely to be disaffected or disappointed from the adjudicative outcome to their dispute having tried the “other way” beforehand. Perhaps even those who might decline to avail themselves of the option to try ADR even if offered would benefit just from having the choice. All disputants, therefore, benefit to some degree from the processes of ADR being readily available and carried out reliably and responsibly.

In the Philosophy of Right, Hegel draws our attention to a feature of action that is revealed to us when we agents become aware of our freedom. At that point, he says, both the aims we project and the objects that realize them become ours.’ Of course, this “ours” does not denote a relation of property in any but a figurative sense. Our ideas, after all, cannot be owned, and the objects in which they are realized can as easily be events as things. If, for example, Bob decides to set fire to some trees in a forest and he accomplishes his purpose, then the burning of the trees may be said to “belong” to Bob, though no court will enforce his suit to prevent others from extinguishing the blaze. Clearly, the relation of belonging to which Hegel refers is one of imputation rather than property. Yet while imputation and property are distinct ideas, everyday language hints at an analogy between them. Not only do we use the same possessive pronoun to express both relations, but we also commonly speak of someone “owning up” to, or “disowning” the consequences of, a deed. Furthermore, just as in property discourse a factual relation of possession is said to generate a right (however qualified) to exclude others, so in moral discourse the factual relation of imputation is commonly thought to mark the boundaries of one’s legitimate accountability for one’s actions. Morally (if not always legally) speaking, I have a right to refuse blame for all outcomes of my action that do not belong to the action or that are not in any sense “mine”. Like property, it seems, the relation of imputation is a fortress for the self, rendering it morally invulnerable to all contingencies save those that reflect its own ends.

Ronald Dworkin was an outspoken critic of pragmatism, and engaged in extensive and at times virulent disagreements with Richard Posner and Richard Rorty. Yet, I argue here, that Dworkin himself had a number of deeply pragmatist commitments. I examine how we can square these two aspects of Dworkin’s thought. I suggest that part of the answer lies in seeing that there are different strands of pragmatism, and that Dworkin falls on the more objective, Peircean side of the divide, while Rorty and Posner belong more in the skeptical, Jamesian camp. But even with this distinction in mind, we should note the substantial overlap between the views of Dworkin and his pragmatist interlocutors—in particular, their anti-archimedeanism and their rejection of metaphysics. Attentiveness to this shared perspective is helpful in illuminating Dworkin’s disagreements with legal positivists. The more foundational divide, I argue, is between analytic legal philosophers who aim to provide an account of the metaphysics of law, and those, like Dworkin and the pragmatists, who reject such a project. I conclude by discussing the implications of Dworkin’s pragmatism for legal philosophy. I argue that it may lead to what some have recently called ‘eliminativism’, and engage with some new and prominent work on this current topic in legal philosophy.

Among the classic arguments which advocates of open government use to fight government secrecy is the appeal to a “people’s right to know.” I argue that the employment of this idea as a conceptual weapon against state secrecy misfires. I consider two prominent arguments commonly invoked to support the people’s right to know government-held information: an appeal to human rights and an appeal to democratic citizenship. While I concede that both arguments ground the people’s right to access government information, I argue that they also limit this right and in limiting it, they establish a domain of state secrecy. The argument developed in the essay provides a novel interpretation of Dennis Thompson’s claim, who in his seminal work on the place of secrecy in democratic governance, has argued that some of the best reasons for secrecy are the same reasons that argue for openness and against secrecy.

In recent years, there has been renewed interest in the question of whether Ronald Dworkin was correct to allege that legal positivists are unable to account for theoretical disagreement about law. However, relatively little attention has been paid to the related question of who can best account for agreement about law. An important exception is Brian Leiter’s argument that there is massive and pervasive agreement in legal judgments and that positivism can account for this agreement but Dworkin cannot. In this article, I argue that Dworkin can account for such agreement, and that his explanation is no less straightforward than the positivist’s. I further contend that Leiter’s strategy for explaining theoretical disagreement is weakened once we recognise that Dworkin has a plausible explanation of agreement in legal judgments. I conclude by exploring how we might choose between the positivist’s and Dworkin’s competing explanations of agreement in legal judgments.

The view that contract law should do social justice deserves closer and more charitable attention than it has been given in theoretical debates. In particular, resistance to that view is often due to misunderstandings about the nature of social justice and the interests it protects; the kind of impact that contract law can make on the social structure and the demands that this would involve for individual transacting agents, and; the relation between structure-sensitive and structure-insensitive principles for the enforcement of voluntary transactions. Once these misunderstandings are dealt with, taking contract law to aim for social justice seems a no less plausible or attractive a view than most other grand normative theories of contract.

This paper seeks to specify the requirements that follow from the Rawlsian duty of assistance. In order to determine them, the hypothesis I will defend is that this duty is a specification of the natural duty of justice. This interpretation has several advantages: a) It facilitates the task of appreciating how one of the most important parts of the Rawlsian conception of international justice presented in The Law of Peoples is connected with the natural duty of justice presented in A Theory of Justice. b) It enables one to appreciate a new requirement of the duty of justice overlooked by Rawls: the duty of contributing to maintaining well-ordered foreign institutions. c) This new requirement enables one to appreciate the critical potential of justice as fairness in relation to one of the most pressing problems nowadays: the foreign debt of developing countries.

Are justice and mercy incompatible with each other, so that it is unjust for a judge to be merciful? In a recent article Jeffrie Murphy generates and explores some interesting paradoxes concerning the virtue (or supposed virtue) of mercy. Murphy argues for a skeptical position concerning mercy in relation to criminal justice: mercy has no place in the sentencing decisions of judges

Those employing constructive interpretive methods and coherence theorists of law generally agree that the coherent reconstructed set of legal principles and norms must meet a high threshold of fit with legal doctrine and institutional practice. Critics of these methods and theories argue that the high threshold of fit they require lead law to be unacceptably conservative. But it is unclear why legal coherentist methods and constructive interpretation must fit legal doctrine to a high degree. The intuition is misplaced from coherence theories of truth and justified belief, where a high threshold of fit with some set of beliefs is necessary. An independent argument is needed for that claim in law. I am unaware of any persuasive independent arguments for a requirement of a high threshold of fit in coherence theories of law. If coherentist methods in law need not fit the settled law to as high a degree as either their proponents or critics think, then they are in theory, and potentially in practice, morally better than their critics urge. However, they are also in practice potentially morally worse than their advocates or critics think. As a first crude approximation, we might claim that judges with superior moral acumen who deploy coherentist methods will do justice more often than if they were more tightly constrained to fit the settled law. Regrettably, however, if the constraint of fit is lower than the conventional wisdom would have it, coherentist judges with poor moral judgment will more often produce unjust decisions. I will qualify this crude approximation later.

In this paper I take seriously Rawls’s characterization of his The Law of Peoples as carrying forward the project of Political Liberalism. The latter articulates Rawls’s reworking of the stability argument from Part III of A Theory of Justice to better square it with the permanent fact of reasonable doctrinal pluralism under conditions of freedom and right. As presented in Theory the stability argument is an argument from moral psychology. This moral psychology structures the problem generated by doctrinal pluralism in both Political Liberalism and The Law of Peoples, each of which sets out a consistent principled liberal response to it, the former in the domestic, and the latter in the international, context. Bringing this moral psychology to the surface sheds considerable light on Rawls’s attempt to vindicate the possibility of world hospitable to enduring just and stable constitutional liberal democracies governed by legitimate law.