What is the relationship between a theory of permissible criminalization and a theory of permissible state punishment? One answer runs as follows: to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. The latter set of conditions doubles as part of the former set. Call this the punishment thesis. It is a thesis with some prominent advocates, but explicit defenses are hard to find. In this paper, I ask how such a defense might proceed. Section I clarifies the punishment thesis itself. Sections II–IV consider a number of arguments in its favor. My contention is that none of these arguments succeeds. Unless a better argument can be found, we should reject the punishment thesis.

Discussions of political obligation and authority have focused on the idea that the commands of genuine authorities constitute content-independent reasons. Despite its centrality in these debates, the notion of “content-independence” is unclear and controversial, with some claiming that it is incoherent, useless, or irrelevant. I clarify content-independence by focusing on how reasons can depend on features of their container. I then show how the fact that laws can constitute content-independent reasons is consistent with the fact that some laws must fail to bind due to their egregiously unjust content. Finally, I defend my understanding against challenges and show why it retains a place of special importance for questions about the law and political obligation. Content-independence highlights that it is some feature of the law or law-making process in general that is supposed to generate moral obligations for citizens, not the merits of particular laws.

In most cases, liability in tort law is all-or-nothing—a defendant is either fully liable or not at all liable for a claimant's loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant's loss only to the degree to which the defendant's wrongdoing contributed to the causing of the loss. I ground this principle in a conception of tort law as a system of corrective justice and use it to critically evaluate different mechanisms for “limiting” liability for consequences of wrongdoing and for “apportioning” liability between multiple wrongdoers.

The right to trial by jury and the requirement of proof beyond a reasonable doubt are two of the most fundamental commitments of American criminal law. This article asks how the two are related, that is, whether disagreement among jurors implies anything about whether the beyond a reasonable doubt standard has been satisfied: Does the due process requirement of the beyond a reasonable doubt standard also require jury unanimity in criminal cases? Drawing on literature about the epistemological significance of disagreement, this article considers the “equal-weight view” and its implications for the unanimity rule in criminal jury decision-making. The equal-weight view says that, roughly speaking, when people disagree on a topic, each view should be given equal weight. This implies, this article concludes, that the unanimity rule is required as a way of enforcing the beyond a reasonable doubt requirement. This article further concludes, however, that jurors should not always be instructed to apply the equal-weight view in their deliberation. Jurors, when applying crime definitions to particular cases, make determinations about both historical facts and normative issues through moral terms like “reckless,” “unjustifiable,” “depraved,” “cruel,” and “heinous,” which are common in criminal law. This article argues that while the equal-weight view should guide the jurors in determining factual issues, it is not the correct model for moral issues, not only because it would imply that acquittals are appropriate in many cases involving controversial moral questions but also because having the jurors follow it would undermine the basic justification for having the criminal jury as an articulator and enforcer of morality.

The widespread antipathy to Hart's description of international law as a simple or primitive social order, one that lacks a rule of recognition and therefore does not qualify as a legal system, rests on two misunderstandings. First, the absence of a division of labor in identifying, altering, applying, and enforcing law is as much, if not more, central to Hart's understanding of what makes a society primitive as is the absence of any secondary rules at all. Second, it is primarily in terms of the presence of such a division of labor and the implications it has for the ontology of law that Hart understands the idea of a legal system and the ideas of a rule of recognition and legal validity that accompany it. Interpreted in light of these claims, Hart's characterization of international law is quite plausible; moreover, embracing it may well provide both theoretical and moral benefits.

In addition to normative powers by which we alter our rights and duties, we can also forfeit rights. Culpable aggression forfeits the aggressor's right against the victim's use of defensive force. So, what happens when an aggressor “fakes it”? If a culpable aggressor is simply bluffing, has he still forfeited his rights? Because there is no threat, leading accounts of self-defense deny that there is forfeiture.

This paper argues that individuals alter their rights and duties through insincere acts. Specifically, when one person culpably causes another person to believe that a normative power has been exercised or a right forfeited, that normative power is in fact exercised or the right is forfeited. An insincere promise counts as a promise; insincere consent counts as consent; and insincere abandonment counts as abandonment. And, the insincere threat forfeits the bluffer's rights to the same extent as a real threat would.

Irving Kristol invoked the example of voluntary gladiatorial contests to show that liberalism's commitment to personal autonomy cannot override majoritarian standards of morality. Liberalism cannot explain why voluntary gladiatorial contests should be banned, but liberals know that such contests should be banned. Thus, honest liberals must concede that majoritarian morality trumps consent. Arthur Ripstein argues that the consent in gladiatorial agreements contains a formal defect. According to Ripstein, because both gladiators sanction their own deaths, both reduce themselves to the status of mere things or slaves. On the Kantian view, slavery contracts undermine the personal sovereignty that binding contracts must presuppose, so Kantian liberals can reject gladiatorial contracts and still avoid legal moralism. I argue that while Kantian liberals have cogent internal reasons for rejecting slavery contracts, not all gruesome and deadly contests are matters of slavery. Thus, Kristol's challenge remains intact.

This paper hypothesizes that the paradox Hart confesses to in Ch. X of Essays on Bentham was the result of metaethical ambivalence. Hart eclectically yokes together metaethically incompatible elements from two disparate models of “normativity of law” with different sources of normativity: the impinging model based on a cognitivist metaethic and the projectivist model based on a noncognitivist metaethic. The “sources” of normativity in the two models are different. On the impinging model the source of normativity is a reason-giving objective moral requirement, and on the projectivist model, the source of normativity is a motivationally affective conative attitude. The metaethical configuration of the rule of recognition in Essays on Bentham constrained Hart to postulate a “source” of normativity metaethically congruous with the impinging model. However, the “source” of normativity Hart seemed keen to advance—he makes an “attitude” the source of normativity—was only congruous with the projectivist model.

This paper defends pro-active policing measures that offer reasonable assurance that the authorities will elicit crimes from citizens that would likely have occurred anyway. Such pro-active measures generally should be directed only at citizens who the authorities can demonstrate to a court have active intentions to commit crimes, must mimic the kinds of opportunities already available to targeted citizens, must be abandoned if the citizens to whom they are offered appear to renounce their criminal intentions, and must be a last resort. They should also be focused on the prevention of serious harm rather than vice crime. Pressuring targeted citizens to accept the opportunities presented to them should be prohibited. When government officials exceed the remit of their pro-active policing warrants, the remedy should be the dismissal of all charges stemming from their overreach.

There is an emerging consensus among political philosophers that state legitimacy involves something more than—or perhaps other than—political obligation. Yet the principle of fair play, which many take to be a promising basis for political obligation, has been largely absent from discussions of the revised conception of legitimacy. This paper shows how the principle of fair play can generate legitimate political authority by drawing on a neglected feature of the principle—its stipulation that members of a cooperative scheme must reciprocate specifically by submitting to the scheme's rules.

Seana Shiffrin's Speech Matters is a remarkably rich, original, and insightful work, casting new and sometimes surprising light on a wide range of issues in law and morality.

At the top of page 7 of the article by Kaiserman in the March 2017 issue of Legal Theory, two equations are reversed. The sentence containing these equations should read as follows:

Suppose for the sake of argument that P(c │ d ˄ b) = 0.9 and P(c │ r ˄ b) = 0.2; then it follows from Causal Contribution that f(D, [R, D]→C)b ≈ 0.82 and f(R, [R, D]→C)b ≈ 0.18.