This article provides a normative appraisal of the law of military occupation by looking into occupation courts and their legitimacy. It focuses on two cornerstones of the current regulation of war: the principle of equality of belligerents, that is, the potential relevance of jus ad bellum considerations on the in bello rights of occupants, and the normative force of the traditional distinction between states and non-state armed groups, specially in conflicts not of an international character. Against the currently predominant neoclassical position in just war theory, it argues in favor of the moral equality of just and unjust occupants. Against the orthodox position in international law, it advocates the symmetrical treatment of states and non-state actors fighting internal armed conflicts, at least in terms of the rights they may claim on the territories under their control. It concludes by appraising the way in which this moral landscape should be translated into legal norms.

Debates about our moral relation to the law typically focus on the moral force of law. Often, the question asked is: Do we have a moral duty to follow the law? Recently, that question has been given a virtue-ethical formulation: Is there a virtue in abiding by the law? This paper considers our moral relation to the law in terms of virtue but focuses on a different question from the traditional ones. The question here is: Can the law model virtue in beneficial ways that enable us to cultivate virtue? This paper shows that the law can do this by setting a moral example that we have good reason to emulate. This is significant given the distinctive influence the law has over our lives. The paper begins by examining the nature of a model, comparing different models of virtue, and then questions the possibility of a complete model of virtue such as the so-called Virtuous Person. The paper then articulates several ways in which the law can model virtue for us and responds to three objections: 1) the embodiment problem, 2) the poisoning problem, and 3) the emulation problem.

This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. “Contractarianism” configures fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty.

This paper offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law: Does the rule of law include only formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? By focusing on the nature of common-law reasoning, I wish to question the form/substance dichotomy that frames this debate and to show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common-law reasoning and as such play a large role in shaping the substantive content of common-law property rights. Understanding this has implications beyond the relationship between property law and the rule of law.

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means “saving the truisms” as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice to dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms.

In this article I criticize a theory of political obligation recently put forward by Christopher Wellman. Wellman's “samaritan theory” grounds both state legitimacy and political obligation in a natural duty to help people in need when this can be done without unreasonable cost. I argue that this view is not able to account for some important features of the relation between state and citizens that Wellman himself seems to value. My conclusion is that the samaritan theory can be accepted only if we are ready to give up either the traditional notion of political obligation as a prima facie duty valid for every citizen or the current view of the relationships that should exist between states, citizens, and foreigners (the view according to which states should have special concerns for their own citizens).

In this article, I examine several distinctions that may be relevant to the morality (and conceptual characterization) of terrorism: (1) the state/nonstate agent distinction, (2) the combatant/noncombatant distinction, (3) the intention/foresight distinction, (4) the means/side-effect distinction, (5) the interrelated necessary/nonnecessary means and produce/sustain distinctions, (6) the mechanical/nonmechanical use distinction, (7) the military/political distinction, (8) the harm/terror distinction, and (9) the harm-for-terror/terror-for-goal distinction. I conclude that some of these factors (though not those most commonly cited) account for the prima facie wrongness of terrorism and that the nondistinctive properties of terrorism (which it shares with some nonterrorist acts) are what make it most seriously wrong. I also provide a conceptual examination of terrorism as we commonly think of it and its relation to torture. In the course of discussing the distinctions and also in concluding the article, I consider why terrorism may sometimes be morally permissible.

This paper explores the Offence Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: (i) that offensive conduct must be a wrong, and (ii) that the conduct must also lead to harm. The nature of the Harm Principle, and its relationship to the Offense Principle, are also considered. The paper suggests that, even if all cases in which offense should be criminalized also involve harm, nonetheless there may be good reasons to retain a separate Offense Principle.