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.

Among the most popular strategies for justifying political obligations are those that appeal to the principle of fairness. These theories face the challenge, canonically articulated by Robert Nozick, of explaining how it is that persons are obligated to schemes when they receive goods that they do not ask for but cannot reject. John Simmons offers one defense of the principle of fairness, arguing that people could be bound by obligations of fairness if they voluntarily accept goods produced by a cooperative scheme. Simmons, however, thinks that such a theory will do little work in justifying political obligations, since virtually no one voluntarily accepts state goods. This paper attempts to advance just such a theory by arguing that states are in fact genuine cooperative schemes and that Simmons is overly pessimistic in his appraisal of whether the majority of citizens accept the goods provided by their states.

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.

In Legality Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a rule of recognition through which officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the rule of recognition are confused and that his model of law—though commendably more sophisticated than any model propounded by earlier legal positivists—is consequently untenable. Shapiro contends that a new approach is vital for progress in the philosophy of law and, with his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant planning theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the planning theory.

After defining Cosmopolitan Right as being limited to the conditions of “hospitality,” Kant includes “Wirtbarkeit” in brackets, a word that connotes innkeeping. Moreover, significant similarities obtain between the relevant passages of the Perpetual Peace and those of the Digest of Justinian on the obligations of ships’ masters, innkeepers, and stable keepers. Unlike for ordinary householders, hospitality for innkeepers is a legal obligation, not a matter of philanthropy: they have traditionally been deemed public officials with limited discretion to refuse travelers, and as fiduciaries of their guests strictly liable for losses to their property. This article attempts to explain Kant's concept of Cosmopolitan Right by analogy to the private law of innkeeping, and ultimately engages in the central philosophical debate about Cosmopolitan Right by accounting for Cosmopolitan Right solely from the “innate” right to freedom, rather than from “acquired” facts such as land or resource distributions or historical injustices.

The idea of public reason requires that citizens in their public deliberation employ considerations stemming from a shared conception of justice. One worry is that public reason's content will be incomplete, in that it does not contain sufficient material for adequate public debate. Rawls has a way of expanding the content of public reason to address such concerns—by including in public reason all those things you and I say in our justification of the conception of justice. After arguing that this strategy fails, a new way of expanding public reason's content is proposed. Instead of understanding the Supreme Court—which Rawls famously calls the “exemplar” of public reason—as an institution that appeals to exogenously determined public reasons, we should understand the judicial authority in a liberal democratic society as an endogenous fountain of public reason.

Looked at from the perspective of an American constitutionalist, individual rights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority,See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY 184–205 (1977). the phrase “individual rights” has a meaning that is now relatively well understood. In a different sense, however, the phrase “individual rights” might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity),See, e.g., Wesley Newcomb Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1964); Arthur Corbin, Legal Analysis and Terminology, 29 YALE L.J. 165 (1919); Roscoe Pound, Legal Rights, 26 INT’L J. ETHICS 92 (1916); Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1149 (1938). and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit,See John Chipman Gray, THE NATURE AND SOURCES OF LAW (R. Gray ed., 2d ed. 1921); Oliver Wendell Holmes, THE COMMON LAW (1881); William Twining, KARL LLEWELLYN AND THE REALIST MOVEMENT 381 (1973); Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897). The theme is also prominent in the work of the Scandinavian Realists. See, e.g., Axel Hägerström, INQUIRIES INTO THE NATURE OF LAW AND MORALS (1953); A. Villem Lundstedt, LEGAL THINKING REVISED (1956); Karl Olivecrona, LAW AS FACT (2d ed. 1971); Alf Ross, DIRECTIVES AND NORMS (1968); Alf Ross, ON LAW AND JUSTICE (1958); Karl Olivecrona, Legal Language and Reality, in ESSAYS IN HONOR OF ROSCOE POUND 151 (F. Newman ed., 1962); Alf Ross, Tû-tû, 70 HARV. L. REV. 812 (1957). the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled Rights Against Rules: The Moral Structure of American Constitutional Law<Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules.

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written;See generally Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998). they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible;See generally Mark Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41 (1995); John Copeland Nagle, Severability, 72 N.C. L. REV. 203 (1993); Robert Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 82–106 (1937). and they interpret statutes in ways that avoid constitutional difficulty.See generally Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997). These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. Several commentators have equated the practices mentioned in the text to judicial revision of statutes. See Dorf, supra note 1, at 292–93 (severance results in a “judicially rewritten law”); Nagle, supra note 2, at 220 (the product of severance is “akin to a new statute”); Schauer, supra note 3, at 80–81 (narrowing construction is a form of “redrafting”).

In this paper I address the issue of the normativity of instrumental rules (for example, legal rules). On the one hand, I criticize Scott Shapiro's “constraint model” of instrumental rule-following according to which instrumental rules have motivational clout qua rules: the agent conforms to them simply because they are rules. On the other, I argue for a purely epistemic account of instrumental rule-following. According to this account, instrumental rules inform the agent which action she is required to perform but do not get her to act. Rather the agent is motivationally guided by the reasons for which she adopted the instrumental rules.

In this article I want to support a certain conception of legal authority. The question I want to address is this: Is it possible to attribute legal authority to a given norm if its authority does not derive from the authority of someone who has issued that norm? Basically, I will try to defend here a negative answer to this question, espousing a personal conception of authority.

It is common ground, as between legal positivists and their critics, that the criminal law ought to be codified in such a way that it can be relied on directly by citizens. I shall criticize this “guidance view” of the criminal law, through analyzing the ambitious attempt of Paul Robinson to devise a criminal code wholly shaped by that view. While there are reasons to favor a legislated criminal code over judge-made criminal law, there is no reason to think that such a code must be capable of guiding laypeople directly. Further, there may be reasons to accept limited judicial discretion to reinterpret the scope of the criminal law to meet unanticipated circumstances. Positivists’ preference (inspired by H.L.A Hart) for legislation coupled with limited judicial discretion is not, and should not, be supported by the (wrongly) supposed need to meet the requirements of the “guidance view.”

Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas, which appeal to the reason (the major premise); (2) pornography communicates no ideas and appeals to the passions rather than the reason (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres.

This paper questions the fairness of our current tort-law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires that the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens that result from informed choice and those that result from fate or fortune. We argue that the theory of corrective justice, along with its institutional embodiment of tort law, is at odds with an egalitarian commitment to fairness because it allows luck an unjustifiable role in determining dissimilar liability for similar wrongs and dissimilar compensation for similar losses to bodily integrity. Many egalitarian political theorists have also recognized, if not defended, the notion of distinct forms of justice, namely corrective, retributive, and distributive. Although theorists of these different forms of justice have been concerned with negating unfair luck inside the operations of each form of justice, there has been little attention to the way in which luck operates to sort cases into each form of justice. We claim that there is a significant way in which luck operates to subject different people to principles of corrective, retributive, and distributive justice—thereby assessing dissimilar liability for similar wrongs and disparate compensation for similar losses—which flies in the face of the egalitarian value of fairness. After surveying the arguments put forward by theorists defending a categorical distinction between corrective justice and retributive and distributive principles, we argue that although analytical distinctions can be made between different forms of justice (although, we also suggest that the distinctions are not as sharp as some commentators suggest), there is no good reason to defend an acoustic separation between these forms of justice when doing so creates unfair outcomes.

I. INTRODUCTION

Many judges and legal scholars are extremely hostile to class actions in which plaintiffs, despite the fact that they would be unlikely to prevail if the case were litigated to a conclusion, nevertheless obtain a large settlement of their claims. For example, Judge Richard Posner, in an opinion denying plaintiffs the opportunity to maintain a class action, cited with approval Judge Henry Friendly’s characterization of “settlements induced by a small probability of an immense judgment in a class action” as “blackmail settlements.”In re Rhone-Poulenc, 51 F.3d 1293, 1298 (7th Cir. 1995) Professor George Priest, himself intensely critical of the rules governing class actions because they permit plaintiffs in class actions to secure substantial settlements even though they have little chance of prevailing, believes that there are judicial decisions refusing to certify class actions, purportedly because the requirements of the controlling rule have not been met, which are really explained by the court’s desire to prevent plaintiffs with a small chance of winning from securing large settlements. George Priest; Procedural Versus Substantive Controls of Mass Torts Class Actions, 26 J. LEGAL STUD. 52 (1997)

In the movie Regarding Henry, the main character, Henry Turner, is a lawyer who suffers brain damage as a result of being shot during a robbery. Before being wounded, the Old Henry Turner had been a successful lawyer, admired as a fierce competitor and well-known for his killer instinct. As a result of the injury to his brain, the New Henry Turner loses the personality traits that had made the Old Henry such a formidable adversary.

Conversions occur in legal theory about as often as they do in religion, which is to say rarely—so rarely that they fascinate as much for the fact that they happen at all as for the reasons they happen. It should not surprise, then, that the Postscript to H.L.A. Hart's famous work on jurisprudence reveals “the outstanding English philosopher of law of the twentieth century” reaffirming, rather than revising in any significant way, the two central tenets that distinguish his theory from that of both classical natural law theorists and modern “new naturalists” like Ronald Dworkin: (1) There is no necessary connection between law and morality; and (2) judges inevitably confront cases where the decision is “not dictated by the law” and the judge “must act as a conscientious legislator would by deciding according to his own beliefs and values” (p. 273).

In the course of discussing his conception of community, Ronald Dworkin refers favorably, though in passing and rather elliptically, to Jean-Jacques Rousseau and his concept of the general will. Dworkin suggests important similarities exist between Rousseau's “general will” and Dworkin's own understanding of community and his related theory of “law as integrity.”

Few criminal defenses have generated as much controversy among philosophers and jurists as has necessity, and few philosophers disagree so thoroughly in political and legal philosophy as do Bentham and Kant. But, in a surprising moment of consensus, Bentham and Kant both argue that an imperiled wrongdoer facing death merits an acquittal because the threat of even capital punishment is insufficient to compel her to obey the law.Jeremy Bentham, THE PRINCIPLES OF MORALS AND LEGISLATION 170 (1948). I will hereafter insert references to this work in the text, following the abbreviation “PML.” Immanuel Kant, METAPHYSICS OF MORALS 28 [6:235] (Gregor ed., 1996). I will hereafter insert references to this work in the text, following the abbreviation “MdS,” to the Prussian Academy pagination. Kant makes the same claim in On the common saying: That may be correct in theory, but it is of no use in practice, PRACTICAL PHILOSOPHY 299n [8:300n] (Gregor ed., 1996). I will work only with the former, as it is later and more developed. At a glance, we might take each therefore to hold that she merits an acquittal on the ground that those who could not conform their actions to the requirements of the law cannot fairly be held to answer for them.George Fletcher glosses Kant this way. Fletcher, RETHINKING CRIMINAL LAW 819 (1978). Michael D. Bayles represents this as the standard reading of both. Bayles, Reconceptualizing Necessity and Duress, 33 WAYNE L. REV. 1191, 1194–1195 (1987). But this misrepresents both Bentham’s and Kant’s views. For each, the nondeterrability of the imperiled wrongdoer does not defeat her responsibility for her actions but rather defeats a condition under which the state enjoys the right to punish wrongdoers. In short, for both Bentham and Kant, the imperiled wrongdoer merits an acquittal because the state lacks standing to punish her. I will call this the ultra vires thesis.

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.