The doctrine of precedent is one of the most distinctive features of the modern common law. Understanding the operation of precedent is important for our theorizing about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent endorsed by practitioners and many legal philosophers alike. I will argue that for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as correctly decided. The relevance of earlier cases is not well understood in terms of rules—they are better understood as a special type of reason.

The essays in this volume constitute a symposium on the work of Joel Feinberg. Ten leading scholars in ethics, legal philosophy, and social and political philosophy offer a glimpse of the scope and impact of Feinberg's work. They address issues such as a theory of rights, antipaternalism, an account of action and omission, and the legal enforcement of morals.

In a 1973 article, H.L.A. Hart says the following about Jeremy Bentham's achievements in the philosophy of law: Bentham was certainly not the first to define law as a command: Hobbes, for example, had anticipated him in that, and even the despised Blackstone's definition of municipal law was in terms of command. But Bentham differed from Hobbes and, as far as I know, from all previous social theorists in insisting that we must not so define our terms in legal or political theory as to make the practical conclusions which we favour follow from them. Such definitions have been aptly called ‘persuasive definitions’ and among Bentham's many claims to be an innovator none is better founded nor, I think, more important than his insistence on a precise and so far as possible a morally neutral vocabulary for use in the discussion of law and politics. This insistence, though it may seem a merely linguistic matter, was the very centre, and I would say the sane and healthy centre, of the legal positivism of which Bentham may be regarded as the founder. It accounts for many important themes in his general theory including the form of his own definition of law. The terms that Bentham uses to define law are all flatly descriptive and normatively neutral. (1973, 28)

In all cases of penal procedure, the declared supposition is, that the party accused is innocent; and for this supposition, mighty is the laud bestowed upon one another by judges and law-writers. This supposition is at once contrary to fact, and belied by their own practice…. The defendant is not in fact treated as if he were innocent, and it would be absurd to deal by him as if he were. The state he is in is a dubious one, betwixt non-delinquency and delinquency: supposing him non-delinquent, the[n] immediately should that procedure against him drop; everything that follows is oppression and injustice.

—Jeremy BenthamJEREMY BENTHAM, PRINCIPLES OF JUDICIAL PROCEDURE 169 (1829).

If the presumption of innocence is not sacred in our system then what is to become of us?

—Judge Reta Strubhar (Oklahoma Court of Criminal Appeals)Flores v. Oklahoma, 1995 OK CR 31 (Okla. Crim. App. 1995).

It is a familiar slogan in legal circles that “like cases should be treated alike.” This idea is often confused with two others: the rationale of analogical reasoning in adjudication, and the value of coherence. I would like to keep these three issues separate, at least for a while. What is unique about idea of treating like cases alike? I would suggest that the interesting cases (and by “cases,” I do mean judicial decisions, to which this essay is confined) are those in which legal decisions are not entirely determined by reasons. If two similar cases are actually determined by the reasons that apply to them, then there is no need for the principle of treating like cases alike: The determining reasons would do all the work of justifying similar rulings. This is what makes the principle of treating like cases alike uniquely problematic and separate from the questions of analogical reasoning and coherence. In analogical reasoning, for example, the assumption is that if there is a good reason that determines a decision X under circumstances C1, and we now face a similar case C2, then the reason that determines X in C1 may also determine (or support) the decision X under C2. In other words, analogical reasoning typically appeals to the reasons that underlie the previous decision(s) and extends the application of those reasons to the new case. (I will qualify this account of analogy in the last section.)

Joel Feinberg's brief against legal paternalism, which is the central focus of his Harm to Self, is undoubtedly the most scrupulous, nuanced, and thorough critique of the view yet provided by a liberal philosopher. I was once convinced of Feinberg's case and am now less sure. This makes me uneasy, both because I have strong liberal instincts that I would prefer to be able to justify, and also because I suppose I have not thought about the matter with the kind or degree of care that Feinberg himself did. In assessing his antipaternalist arguments, I include here a number of excerpts from Feinberg's own writings to remind us of his subtlety and precision, his broad range of references, his elegant and informed style, his sound good sense, his ability to provide the revealing, compelling example, and his supple cast of mind. That my commentary is bound to pale by comparison is inevitable, but I take some comfort in thinking that one cannot be held liable for what cannot be helped.

So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes…. [E]xtending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.

Modern liberalism developed out of the strife of post-Reformation religious warfare. Among liberalism's central ideas were those of the individual's right of religious liberty and the separate jurisdictions of secular and religious authority. In societies that accepted these ideas and put them into institutional practice, levels of systemic religious violence were dramatically diminished. Moreover, the liberal principles that helped to build and sustain civil peace could make a strong claim to providing a just framework for addressing religious differences. Yet important normative questions have remained about the policies a liberal state should adopt toward religion.

There are only two species of justice: distributive justice and rectificatory justice. Distributive justice is primarily concerned with the distribution of rights and duties to members of society by way of society's institutions. Included in this concern for a just distribution of rights and duties is a concern for those members of society who are disadvantaged in their opportunities to participate in the benefits of social cooperation. When such disadvantages arise, distributive compensation is due to these members of society as a means of removing the disadvantage. To compensate for something is to counterbalance it; to give something equivalent in value to the thing. “The root of ‘compensate’ is “to weigh,” that is to weigh different things together in order to establish a balance between them…‘compensation’ carries the connotation of providing something equivalent in value to that which has been lost.” In the case of distributive compensation, this rendering of an equivalent in value is done in order to alleviate some disadvantage or natural loss that is thought to pose an undue hindrance on members of society.

The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s—the Vietnam War and the North-South economic imbalance—have returned to the domain of philosophers. This engagement has taken place in two distinct but related debates. First, philosophers have devoted attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits disparate treatment of an individual's co-nationals. Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as Brian Barry put it, “given a world that is made up of states, what is the morally permissible range of diversity among them?” One impetus for renewed work on these ideas was the publication of John Rawls's The Law of Peoples.

Among Joel Feinberg's almost innumerable achievements are his development and defense of the sovereign-right conception of autonomy and its corresponding rejection of hard legal paternalism. According to Feinberg, a competent individual's voluntary, self-regarding conduct falls within the protected realm of sovereign self-rule and is therefore immune from coercive, paternalistic interference by the state. It does not matter whether the self-harm the state wants to prevent is big or the coercion needed to prevent it is small. The coercive interference would be illegitimate because “sovereignty is an all or nothing concept; one is entitled to absolute control of whatever is within one's domain however trivial it may be.”

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticized by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy's risk–liability theory and that such an approach is a promising means both for understanding the moral basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law.

In this article I develop a Razian account of the authority of customary law. I then use this account to refute Matthew Kramer's claim that insofar as Raz endorses custom as a possible source of law, he ought to grant the same status to correctness as a moral principle. I contend that it is because customary norms can be authoritative, and not because they are what Kramer labels free-floating, that customary norms can be incorporated into law while moral norms cannot. In addition, I argue that nothing in Raz's conception of the nature of law entails that being free-floating is even a necessary condition for a norm's being eligible for incorporation as law. Reasons of political morality or political psychology, however, may weigh against incorporating norms that are not free-floating.

This article argues that there is a fundamental tension between Joel Feinberg's theory of the nature of rights and his account of what types of beings are potential right-holders. In explaining this tension, I argue that Feinberg actually adopts two competing concepts of rights. Clearly, Feinberg must choose between these two theories, but I suggest that both are attractive and that neither view can be selected as either “correct” or “incorrect” on the grounds of either logical consistency or even straightforward conceptual analysis. In the end, one's preference between these two concepts of rights depends upon competing values, values about which reasonable people can disagree.

Christopher Wellman argues that Joel Feinberg fails to grasp the distinction between will theories and interest theories. According to Wellman, this failure leads Feinberg to defend a will theory in “The Nature and Value of Rights” and an interest theory in “The Rights of Animals and Unborn Generations” and therefore to hold an inconsistent theory of rights. Wellman's interpretation of Feinberg is plausible. I will argue that there is another plausible interpretation and that the texts do not allow us to determine which of the two plausible interpretations is correct. I will also argue that this alternative interpretation allows Feinberg to avoid Wellman's charge of inconsistency but has problems of its own. Along the way, I will make some points about how to defend a theory of rights and about the strengths and weaknesses of the will and interest theories of rights. (Wellman holds that choice theories are a subset of will theories. I have argued elsewhere that it is better to see will theories as a subset of choice theories. However, how one cuts up the field is irrelevant to the issue at hand. For the sake of argument, I will assume that Wellman's topology is correct.)

In Chapter 4 of his famous work, Harm to Others, Joel Feinberg, with characteristic clarity and insight, outlined the major problems associated with analyzing the foundations of responsibility for the failure to act. In that chapter he made a number of controversial claims supported by arguments that have generated debate ever since he made them in 1984. His analysis led him to conclude that liability (or responsibility) for the failure to act falls within the moral limits of the criminal law in cases in which a random bystander could easily rescue a seriously imperiled stranger.

Patricia Smith provides an analysis of the concept of omission that builds upon the work of Joel Feinberg. Her account succeeds in bringing together more systematically than did Feinberg several key elements of his analysis. She also usefully extends the analysis to include unintentional omissions. Nonetheless, I argue that she mistakenly presupposes that there is a unique and logically fundamental concept of omission. Rather, I contend, there are multiple omission concepts, each mapping the conceptual terrain of inaction in a somewhat different way. These different concepts, each useful for a distinct purpose, will emerge from an examination of the flaws that Smith's account shares with Feinberg's analysis.

Joel Feinberg was a brilliant philosopher whose work in social and moral philosophy is a legacy of excellent, even stunning achievement. Perhaps his most memorable achievement is his four-volume treatise on The Moral Limits of the Criminal Law, and perhaps the most striking jewel in this crowning achievement is his passionate and deeply insightful treatment of paternalism. Feinberg opposes legal paternalism, the doctrine that “it is always a good reason in support of a [criminal law] prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself.” Against this doctrine Feinberg asserts that when an agent's sufficiently voluntary choice causes harm to herself or risk of harm to herself, this category of harm-to-self is never a good reason in support of criminal law prohibition of that type of conduct.

Richard Arneson finds that Joel Feinberg's “principled arguments against hard paternalism are defective and merit rejection.” Furthermore, Arneson concludes with a tone of finality, “there is no successful case against hard paternalism to be made.” This diagnosis seems especially dire coming from Arneson, who formerly defended hard antipaternalism against Feinberg's revisionistic “soft” antipaternalism. On Feinberg's behalf I will try to show how Arneson's critique downplays certain costs of hard paternalism. These costs may be worth paying, but (I think Feinberg believed) their magnitude itself constitutes a powerful case against paternalism.

Poetry is about the grief; politics is about the grievance.

—Robert Frost

The ruling passion in man is … a gregarious instinct to keep together by minding each others' business.

—Robert Frost