If common law is to run parallel to the morality of promissory obligation, it must require the breaching seller to keep his promise, not simply to pay off the buyer. However, in the event of promise-breaking, common law orders the defendant to compensate the claimant for the loss that flows from the breach of the duty to perform. The following questions then arise: why does English law not order the defendant to do the very thing that the substantive duty requires him to do? Why does it not adopt specific performance as the primary remedy? Is it because English law runs against the morality of promise? The answer is ‘no’. A number of justifications have been put forward to explain the common law’s reluctance to award specific performance despite its undoubted acceptance as the appropriate moral response to promise-breaking. This article will explain each and show which is more persuasive.

This paper critically examines prevailing egalitarian theories (which assess inequality between two individuals on the basis of their lifetime experience). The paper proposes an alternative theoretical framework: the Dignified Lives Approach. This theoretical framework, which rests on deontological foundations, considers all human beings as of equal moral worth, and advocates treating each individual with equal concern and respect at any given time. The paper articulates five essential principles of equality founded in the notion of equal concern and respect: the principle of individual assessment, the principle of equal influence, the principle of sufficiency, the principle of social inclusion, and the principle of autonomy. Focusing on senior workers, the paper reveals that age discrimination may be as unjust as other forms of discrimination. It therefore articulates a strong, moral case for eradicating age discrimination which is well supported by recent judicial developments.

The aim in this article is to explore the complicated connections between standards and letting go and between rules and control. Both constitute a central tenet of Justice Roberts’ Graham concurrence, as well as a central tenet of the minimalist approach which he implicitly adopts. The tension within Roberts’ position is not conclusive. It may depend on the actual way one uses standards. If Roberts consistently uses standards de facto in a deferential way, and signals that he will not intervene, he may be consistent with the approach. But the tension exists. Standards and minimalism do not always go hand-in-hand. Finally, the article questions the efficacy of minimalism as a workable judicial philosophy. Roberts is, after all, the first Justice who adopted minimalism whole-heartedly. The difficulties with the application of minimalism in Graham and its inherent tensions revealed through this case raise some doubts as to the possibility that minimalism can move effectively from theory to actual judicial practice.

Should poverty be a mitigating factor, if it affects neither the strength of temptations to commit a crime an offender faced nor his mental capacity to refrain from committing the crime? I argue that it should, because of distributive justice. I argue for this conclusion in two steps. First, I argue that we can improve distributive justice by mitigating poor offenders. Second, I argue that there are no strong objections against taking into account considerations of distributive justice in the sentencing process. I also compare my argument with an argument made by Jeffrie Murphy and explain how some objections against Murphy’s argument do not apply against my argument.

Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this article argues, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation.

The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy. The article defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty of amending the fundamental law in order to respond to a judicial decision that invalidated (or validated) an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.

Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law (in particular Grotian) contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his own epistemology and conceptual system. I submit that because of this connection, additional light can be shed on Kant’s theory of contract by placing it in the context of contemporary Natural Law discourse. One of the most outspoken critics of contract theory in the Grotian tradition was then famous (and now apocryphal) legal philosopher Theodor Schmalz. Schmalz faulted Natural Law thought for conceptualizing contract as transfer by fallaciously – “subreptively”– explaining the normative event of creating an obligation through the model of the empirical transfer of physical objects. Kant’s theory reads like a response to this critique: Kant avoids modelling contract on the transfer of property. Rather, he explains any transfer as contractual, brought about by a unified will.

This article explores Joseph Raz’s methodological thesis about the conceptual priority of the participants of legal practices in the understanding of law. In particular, it contends that given the participant’s conceptual priority in the understanding of law we must conclude that legitimate authority is a necessary property of law. It argues that to maintain that a claim to legitimate authority is the necessary property of law, and not legitimate authority itself, as Raz does, we must abandon the participant’s perspective. It defends that Raz introduces his thesis of the claim to legitimate authority of law without further justification, and deprives it from support from a methodological point of view.

In his account of adjudication, Ronald Dworkin makes the case that judicial engagement with morality is a necessary feature of legal practice and so of law itself. This paper examines the nature and implications of this claim. It argues (a) that Dworkin is concerned with a form of engagement between law and morality that is insufficient to make morality count as part of law in virtue of it and (b) that the sort of engagement with morality that Dworkin identifies turns out to support only the notion that judicial acts have moral meaning or import of some sort. Dworkin’s key interpretive claim that adjudication entails offering a positive moral justification for the practice of law is undermined by the type of moral engagement he properly identifies.

Contemporary legal philosophers commonly understand the normative force of law in terms of practical reason. They sharply disagree, however, on how exactly it translates into practical reason. Notably, some have argued that the directives of an authority that meets certain prerequisites of legitimacy generate reasons for action that exclude some otherwise applicable reasons, while others have insisted that such directives can only give rise to reasons that compete with opposing ones in terms of their weight (an approach I will call the weighing model). Does the weighing model provide a normative framework within which law could adequately facilitate correct decision-making? At first glance, the answer appears to be ‘yes’: there seems to be nothing about law-following values—such as coordination reasons, the desirability of social order, deferential expertise, etc.—which prevents them from being factored into our decision-making in terms of normative weight that tips the balance in favor of compliance with law inasmuch as it is worthwhile to comply with it. This impression, however, turns out to be incorrect when, drawing on a body of empirical work in psychology, I observe that many of the practical difficulties law typically addresses are difficulties that have part of their root in biases to which we are systematically susceptible in the settings of our daily activity. I argue that the frequent presence of those biases in contexts of activity which law regulates, and the pivotal role law has in counteracting them, emphatically militate against the weighing model and call for its rejection.

Nationalism appears to be so entrenched in political life and discourse, that its illiberal face is often deemed to be an exception and unfortunate coincidence triggered by international terrorism. Alternatively, it may be depicted as the result of ill-thought policies which can be reversible. In this paper, I argue that liberal nationalism is conceptually flawed and politically illiberal. Illiberal tendencies are an integral part of it and these cannot be corrected by ‘taming’ unruly nationalism or by articulating ‘benign’ adaptations of it. Because the liberal and illiberal faces are interwoven in complex ways, my suggestion is to look far ahead and beyond it. The territory may be uncharted, but a commitment to a pro-human welfare orientation could open the way for separating liberalism from nationalism and aligning the former with critical democratic politics. The challenge, as I see it, is to articulate a liberal anationalism which by affirming equal human dignity and the importance of non-domination could sustain inclusionary and democratic communities.

Contemporary Kantians suggest that the original acquisition of property is problematic for Kant’s theory of private law. Kant requires that private law obligations be consistent with the equal freedom of everyone. However, a rule of original acquisition seems to favor the acquirer’s freedom over others’: the acquirer originally obtains property in an unowned object simply by taking control of it, and thus seems to impose obligations on everyone else (to respect the property right) through her own “unilateral” action or choice. This article first addresses proposed Kantian solutions to the supposed “unilateralism” problem, which involve the creation of a “civil condition” of public legal institutions to determine property rights. Such solutions make property rights a matter of distributive justice rather than corrective justice. Moreover, they cannot actually solve the unilateralism problem. But in any event, the supposed “unilateralism” problem is in fact no problem at all for Kant. This is because one person’s original acquisition does not limit others’ “freedom” in the Kantian sense of that term. In this respect Kant’s account of property is equivalent to Hegel’s, which contemporary Kantians have criticized for denying any problem of unilateralism. And both Kant and Hegel’s accounts are fully consistent with a theory that explains property as a matter of corrective, rather than distributive, justice.

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.

The international law of war limits the use of violence, largely through protections afforded to civilians. However, the law provides no principled limit on the taking of combatant life — soldiers may be killed even if to do so would contribute absolutely no military advantage. This permissive approach to unnecessary killing has deep historical roots in the philosophy of the law of war. Three justifications for unnecessary killing have been advanced: a robust notion of sovereignty that views the soldier as a disposable molecule of a greater being; the idea that soldiers are ‘guilty’ and deserve what befalls them in war; and a pragmatic approach holding that limits on gratuitous violence are both impossible to implement in practice as well as harmful. None of these arguments are persuasive in light of the contemporary consensus that there is a human right to life that ought to be respected at all times, even in war. A rule of “combatant proportionality” should therefore be formally incorporated into the law of war.

This article assesses three broad issues from James Madison’s writings in Federalist 37 – (1) the nature of man, (2) the contestability of language, and (3) the relevance of theory to the real-world constitutional project. Part I discusses the implications of Madison’s conception of man, outlining some of the checks and balances that can limit political tyranny and assesses his idea of achieving stability by allowing faction in the new federal polity. Part II discusses the openness or contestability of language which Madison embraces in Federalist 37, and relates Madison’s position to the contemporary originalist or textualist approach to constitutional interpretation. Part III assesses implications that arise from Federalist 37 and concludes that, although real-life issues were at stake, the constitutional project was theoretical. Theory can incorporate real-life divergence of opinion.

This essay looks at the contemporary just war theory literature on preventive war that has emerged largely in reaction to the US invasion of Iraq. Recent sanctions on Iran and the debate over its nuclear program now suggest the usefulness of a forward looking perspective on preventive strikes, rather than the retroactive analyses offered thus far primarily with reference to Iraq. With Iran closely in mind, I address the various arguments for and against preventive war indicating throughout that the various principled objections to early military action can be overcome in this case. Many of the crucial concrete questions regarding costs and benefits need to be settled in practice, rather than in the realm of political theory. Ultimately, the discussion suggests that Iran is a legitimate candidate for early military action aimed to prevent it from developing nuclear weapons. I argue that in principle, subject to credible intelligence information and requirements of proportionality, a unilateral Israeli strike against Iran will be justifiable, both morally and legally, as self-defense.

The authors of Crime and Culpability hold a subjectivist theory of criminal culpability according to which the core concept in culpability is subjective recklessness, negligence is not culpable, and it is irrelevant to culpability whether or not a criminal act results in harm. I argue against these three theses and criticize the authors’ views on the structure of criminal law, criminal defences, criminal attempts, and codification.

A broad assortment of contemporary approaches to legal and normative complexity have challenged state law’s claim of dominance and exclusivity. In Ubiquitous law: Legal Theory and the Space for Legal Pluralism (2009), Emmanuel Melissaris similarly seeks to ground the ‘legal’ in what he calls ‘shared normative commitments’. As with much ‘legal pluralism’, his focus on normativity rejects long-established conventional concepts of law. Indeed, for Melissaris, state law may not even properly qualify as ‘law’. But understood as a descriptive theory of normativity, the dynamic legal-normative web he outlines has much to recommend it. It is certainly superior to the continuing narrow concentration of jurisprudes on state law and law-like regimes. Less convincing is Melissaris’ prescriptive suggestion, with ‘critical legal pluralists’, that illustrating the degree to which legal-normative reform occurs beyond the state and its laws promises liberation. Shared normative commitments do not necessarily result in popular control as existing social structures and power relationships remain. We may be ensnared rather than emancipated. On the whole, however, Melissaris has made a sophisticated and substantial contribution to our understanding of legal and normative plurality. His book deserves to be widely read.

This is a Critical Notice of From Normativity to Responsibility, Joseph Raz’s brilliant treatment of the nature of normativity and reasons. Building on the thought that the law claims to give reasons to its subjects, I consider the application of Raz’s views about reasons to some questions in legal philosophy. I concentrate on what I take to be the central idea of the book, Raz’s “normative/explanatory nexus”, according to which a consideration cannot be a (normative) reason for an agent to perform an action unless the agent could follow the consideration in performing the action. I show (briefly) how the nexus can explain some of the Fullerian principles of legality. And I examine (at somewhat greater length) the implications of the nexus for our understanding of the psychology of legal obligation; here I suggest that the nexus might cause trouble for Raz’s own well-known exclusionary reasons account of legal obligation.

This Critical Notice of Community and Collective Rights: A Theoretical Framework for Rights Held by Groups, has two parts. In the first part, I provide a detailed summary of the considerations Dwight Newman maintains will determine whether a particular group is a legitimate rights-holding collectivity. In the second part, I argue that his understanding of autonomy as one of a set of several significant and competing morally relevant values, combined with his reliance on that understanding of autonomy to describe and defend his theoretical framework, suggest it is not an acceptable or useful framework for Kantians.

In Legality, Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.