In the posthumously published Postscript to The Concept of Law, H.L.A. Hart claimed that the account he advanced in that book was meant to be “both general and descriptive.”H.L.A. Hart, THE CONCEPTOF LAW 239 (2nd ed. with Postscript; Penelope A. Bulloch and Joseph Raz, eds., 1994). Hereinafter “Hart.” The meaning, possibility, and desirability of such an account of legal institutions form the subject of much recent interpretative and critical debate.See, e.g., Stephen Guest, Two Strands in Hart’s Concept of Law: A Comment on the Postscript to Hart’s The Concept of Law, in POSITIVISM TODAY 29-44 (Stephen Guest, ed., 1996); Michael Moore, Hart’s Concluding Scientific Postscript, 4 LEGAL THEORY 301-327 (1998); Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249–282 (1998). Prominent among the disputants is Professor Stephen Perry, who, in several recent articles, offers both an interpretation of Hart’s distinctive methodological aims and a critical argument that counsels their rejection.Stephen Perry, Hart’s Methodological Positivism, 4 LEGAL THEORY 427–467 (1998) (hereinafter “HMP”); The Varieties of Legal Positivism, 9 CAN. J. L. & JURIS. 361–381 (1996) (hereinafter “VLP”); Interpretation and Methodology in Legal Theory, in LAWAND INTERPRETATION: ESSAYSIN LEGAL PHILOSOPHY 97, 118 (Andrei Marmor ed., 1995) (hereinafter “IMLT”). Perry’s interpretation is worth examining, not only for his claims about Hart, but also for his more general claims and assumptions about what a descriptive theory of law would be expected to look like and what it could hope to accomplish.

Whereas the Restatement of Torts and leading economic and justice-based approaches to explaining the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively fixed amount of care, whereas plaintiffs are generally assessed using a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant's negligence with a favorable assessment of plaintiff's negligence, means that the victim gets to fix the terms of the interaction. This argument resonates with the powerful egalitarian idea of accommodating, rather than overlooking, relevant differences; different treatment is necessary for the duty of reasonable care to give effect to the qualitative difference between the plaintiff's life and limb and the defendant's autonomy. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, or to relate as substantive equals.

Lawyers and philosophers have misunderstood the rights of bequest and inheritance within Locke's theory of property. While lawyers assume these are unqualified natural rights, philosophers find Locke's account of them so inadequate as to cast their existence into serious doubt. But on Locke's theory, the rights of bequest and inheritance are neither absolute nor incoherent. Locke treats inheritance as a form of imputed bequest, whereby natural law imputes to the intestate an intention to leave his goods to his closest family members. Both bequest and inheritance find their justification in the prerogatives of owners to dispose of their property. These prerogatives are not without limit, however. The needs of a decedent's dependents trump specific bequests, and both bequest and inheritance are subject to the duty of charity. Bequest and inheritance thus order the relative claims of owners and others so that they are consistent with Locke's more general theory of property.

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.

A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing out, but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected.

This article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice (or welfare) of the social order as a whole.

Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree.

The debate over judicial review of legislation is profuse. But differences are often due to the lack of a common methodology. This article discusses the proper way to evaluate judicial review and confronts central challenges raised against it. It develops the two main models that can be used for analyzing the intersection between democracy and constitutional decision-making and shows that judicial oversight may not be rejected, regardless of how we interpret that connection. The article discusses in detail the model developed by Jeremy Waldron. A nice attempt to answer methodological questions, Waldron's model wrongly tips the balance against judicial review. Its excessive level of abstraction and idealization renders it inoperable. Few systems meet its standards, and those that do pay a high price: they contradict the concept of democratic legitimacy that underlies the model. Paradoxically, a system with judicial review may end up being more legitimate than one without it.

The fair use doctrine is at once the most significant and the most problematic qualification of the copyright owner's right to exclusivity. An affirmative defense against copyright liability, the fair use doctrine legitimates certain unauthorized reproductions of copyrighted materials that would otherwise be regarded as copyright infringements. Notwithstanding its importance, “fair use” continues to be “the most troublesome [doctrine] in the whole law of copyright.” Throughout its long history, neither courts nor legislatures have provided a useful definition of “fair use” nor have they adumbrated its objectjves. Since the doctrine's inception over two and a half centuries ago, courts and legislatures have attempted to formulate, explicate, refine, and revamp the fair use doctrine. Generally, these efforts have proven unfruitful. At best, they have resulted in various formulations of how to approach fair use questions that offer courts and users of copyrighted works scant guidance on how fair use should be recognized. All this would not have been of grave concern had judges shared a common understanding of fair use or of the principles that should guide them in deciding fair use cases. The problem is that they do not. Rather, the case law reflects wdely divergent notions of the concept of fair use. The lack of consensus is best witnessed in the multiple reversals and divided courts that have become the hallmark of fair use litigation.

Like many of you, I have a neighbor with an excitable car alarm. It goes off if someone drives by at just the right speed, if the humidity is right, or if a large insect lands on the hood. Worse, it seems most sensitive at night. (Perhaps that’s just when he parks in front of my house.) I’d like to do something about it, to preempt it before it preempts another night of sleep. One possibility, which is beyond my competence, is repairing it myself. Another, which I have so far resisted, is to get out my tool box and remove the offending device. Private law has a kinder and gentler solution: I can get an injunction. Rather than trying to sue my neighbor for minuscule damages each time he wakes me, and waste a huge amount of both of our time in the process, I can enlist the state’s support, and have it act preemptively to prevent him from waking me.

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.

Despite the attention equality before the law has received, both laudatory and critical, peculiarly little has been done to precisely define it. The first ambition of this paper is to remedy this, by exploring the various ways in which a principle of equality before the law can be understood and suggest a concise definition. With a clearer understanding of the principle in hand we are better equipped to assess traditional critique of the principle. Doing so is the second ambition of this paper. I will argue that traditional criticisms are unpersuasive, but that there is a different, powerful argument against equality before the law. The third ambition of the paper is to argue that there is a sense, overlooked by both proponents and critics, in which the principle still captures something important, albeit at the cost of shifting from intrinsic to instrumental value.

Retributive restrictions are principles of justice according to which what a criminal deserves on account of his individual conduct and character restricts how states are morally permitted to treat him. The main arguments offered in defense of retributive restrictions involve thought experiments in which the state punishes the innocent, a practice known as telishment. In order to derive retributive restrictions from the wrongness of telishment, one must engage in moral argument from generalization. I show how generalization arguments of the same form can be used subversively to derive morally unacceptable conclusions from other scenarios in which the state intentionally inflicts undeserved coercion. For example, our considered moral convictions approve of punishment policies that inflict collateral damage, such as the ubiquitous policy of excluding the family members of inmates from prison facilities outside visiting hours. I present a generalization argument for the conclusion that these policies are seriously unjust. If we firmly believe that these policies are not unjust, then we should put less stock in generalization arguments. We should not use them to support retributive restrictions. This conclusion has broad implications for the theory and practice of criminal justice.

Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism—arguably best classified as a version of expected-applications originalism—is “confused, implausible, and unworkable.” I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions.

I. INTRODUCTION: LEGAL RIGHTS AND MORAL RIGHTS

Having outlined two different ways of articulating the tort of negligence, John Gardner explains that: “the way we render the ingredients of the tort matters for the defensibility of the regime of liability that it brings in its wake. The reason is that to defend the incidence of the liability one must first defend the assertion of the duty.” And defending the assertion of the duty—given that the law “stands or falls in its own moral legitimacy depending on whether it has the very moral authority that it claims”—involves the following:

What is law, and how do we know what law is? When a philosopher of law asks these questions, it pays to be cautious. When asked philosophically, the question what is law? is clearly not a question about the content of particular laws, although that question is not devoid of philosophical interest: As Nigel Simmonds has said, when disagreements about the law’s content occur, these are generally not disagreements about what the rules are, nor do they revolve around theses of ambiguity in the semantic structure of specific rules. Rather, they seem to depend upon varying conceptions of the framework of principles upon which the law is based.See Nigel Simmonds, The Decline Of Juridical Reason 17–19 (1984).

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.

Authority is a normative power to create duties in others. The most plausible accounts of this general power relate it to existing reasons the subjects of authority have with which authoritative directives can help them comply. Such accounts lead some theorists to ascribe a morally ambitious function to political institutions. This article argues against such theories. It defends political authority as a modest normative power, constrained by the type of reasons with which it can help its subjects comply. This modest account differs from other liberal views in the limits it imposes on the exercise of political authority. It casts doubt on familiar limits that protect an individual private sphere. Instead, it imposes a condition of moderation. It suggests that legitimate exercises of political authority should leave space for individuals to be motivated by reasons that political institutions do not and should not mediate for them.

Inclusive Legal Positivism, as understood throughout this article, consists in the following thesis: It can be the case, though it need not be the case, that a norm’s consistency with some or all of the requirements of morality is a precondition for the norm’s status as a law in this or that jurisdiction. While such a precondition for legal validity is not inherent in the concept of law, it can be imposed as a threshold test under the Rule of Recognition in any particular legal regime. That test, which can be applied by the officials in such a regime to all of the legal norms therein or to only some subset of those norms, is one of the criteria that the officials use for ascertaining the law. Insofar as a criterion of that sort does prevail in any particular legal system, then, some degree of moral worthiness is a necessary condition for the legally authoritative force of each norm that is validated thereunder. Inclusive Legal Positivism, which readily accepts the possibility of such a state of affairs, is inclusive because it allows that moral precepts can figure among the criteria that guide officials’ ascertainment of the law. Inclusivist theorists reject the view that every criterion of law-ascertainment in every possible legal system is focused on nonnormative matters of provenance. At the same time, the Inclusivists are positivists because they also reject the view that every possible legal system includes moral tests among its law-ascertaining criteria. An Inclusive Legal Positivist insists that such tests are contingent features, rather than essential features, of the systems of law wherein they are applied.

Much legal and philosophical work has been devoted to discussing the importance of protecting freedom of expression from legislative curtailment by the state. That state-centric focus has meant that the ways that wider social phenomena can stifle freedom of expression have, with a notable exception, escaped sustained philosophical attention. The paper reflects on the nature of socially coercive restrictions on free expression and offers an account of how it is appropriate to respond to such forms of social coercion. First, it considers a range of social costs pertaining to expression and argues that such costs can constitute meaningful restrictions on the freedom to express. Second, it reflects on the normative implications concerning that threat to free expression and defends two related moral duties citizens have to refrain from being complicit in unjustified social coercion—a duty of expressive toleration and a duty of respect for expressive agency.