Familiar questions about whether or how far to impose risks of harm for social benefit present a fundamental dilemma for contractualist moral theories. If contractualism allows “ex post” objections by considering actual outcomes, it becomes difficult to justify the risks created by most public policy, leaving contractualism at odds with moral commonsense in much the way utilitarianism is. But if contractualism instead takes a fully “ex ante” form by considering only expected outcomes, it becomes unclear how it recommends something other than aggregative cost-benefit decision-making. Focusing on T.M. Scanlon's version, this paper develops this basic choice of interpretation and recommends the ex ante version. The paper explains how contractualism is inconsistent with John Harsanyi–style utilitarianism and how contractualism supplies a principled framework for walking a careful line between the “bad aggregation” characteristic of utilitarianism and the “good aggregation” that is both unavoidable and fully appropriate in public life.

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoning—the practice of distinguishing cases—that rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders to the rule-theorist objections and persuasive accounts of distinguishing.

In contrast to logical criteria of rationality, which can be assessed entirely by reference to the system of preferences, substantive criteria of rational choice refer to an independent evaluation of the outcomes of decisions. One of these substantive criteria is the experienced hedonic utility of outcomes. Research indicates that people are myopic in their decisions, may lack skill in predicting their future tastes, and can be led to erroneous choices by fallible memory and incorrect evaluation of past experiences. Theoretical and practical implications of these challenges to the assumption of economic rationality are discussed.

The result model of precedent holds that a legal precedent controls a fortiori cases—those cases, that is, that are at least as strong for the winning side of the precedent as the precedent case itself. This paper defends the result model against some objections by Larry Alexander, drawing on ideas from the field of Artificial Intelligence and Law in order to define an appropriate strength ordering for cases.

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish between substantive and methodological legal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law.

Social groups claim authority to impose restrictions on their members that the state cannot. Churches, ethnic groups, minority nations, universities, social clubs, and families all regulate belief and behavior in ways that would be obviously unjust in the context of a state and its citizens. All religions impose doctrinal requirements; many also enforce sexist practices and customs. Some universities impose stringent speech and conduct codes on their students and faculty. Parochial schools discriminate in their hiring practices. Those who complain about such internal restrictions on the liberties of members might well be told to “love it or leave it.”

I. INTRODUCTION

To what extent are the existence and content of law dependent on morality? Legal Positivism is generally understood to answer: Not at all; the existence of law is one thing, its merit or demerit another thing entirely. Positivism’s historical rival, Natural Law Theory, is widely understood to answer: To a very large extent indeed: An unjust law seems to be no law at all. Recent developments in jurisprudence have rendered these understandings highly questionable and potentially misleading. Natural law theorists like John Finnis and Robert George deny that justice was ever thought by contemporary or traditional defenders of natural law theory to be a necessary condition of law,See, e.g., John Finnis, The Truth in Legal Positivism, and Robert P. George, Natural Law and Positive Law, both in THE AUTONOMY OF LAW (R. George ed. 1996). whereas positivists like H.L.A. Hart, Jules Coleman, and this author assert that morality can indeed play a key role in determining the existence and content of valid laws. But not all self-avowed positivists agree with the line pursued by Hart et al. Many follow the lead of positivism’s greatest contemporary critic, Ronald Dworkin, in claiming that this new brand of positivism, variously termed “incorporationism,”See, e.g., Jules Coleman, Authority and Reason, in THE AUTONOMY OF LAW, supra note 1; and Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381–425 (1998). “soft positivism,”H.L.A. Hart, Postscript in THE CONCEPT OF LAW (P. Bullock & J. Raz eds., 1994). or “inclusive legal positivism,”Waluchow, INCLUSIVE LEGAL POSITIVISM (1994), hereinafter referred to as ILP. Inclusive positivism, the legal theory, will be referred to as ILP. is either an untenable version of positivism or no version of positivism at all. Among the central challenges to ILP posed by its positivist critics is an objection first raised by Joseph Raz: that ILP (like Natural Law Theory and Dworkin’s “law as integrity”) is inconsistent with the practical authority that law necessarily claims for itself.

What conception of causation is at work in the law? I argue that the law implicitly relies on a contrastive conception. In a liability case where the defendant's breach of duty must be shown to have caused the plaintiff's damages, it is not enough to consider what would have happened if the cause had not occurred—the law instructs us to look to a specific replacement for the cause, which in this case is the hypothetical scenario in which the defendant acted lawfully. And it is not enough to ask if the effect would still have occurred—the law requires us to look to a specific replacement for the effect, which in this case is the hypothetical outcome in which the plaintiff came off better. In place of “but for the defendant's breach, the plaintiff's damage would not have occurred,” I suggest the more explicit “if the defendant had acted lawfully, the plaintiff would have met a better fate.” An explicitly contrastive approach can thus potentially help the lawyer phrase her causal question in a more explicit way, while shedding light on our conception of causation.

Many have claimed that legitimate constitutional democracy is either conceptually or practically impossible, given infinite regress paradoxes deriving from the requirement of simultaneously democratic and constitutional origins for legitimate government. This paper first critically investigates prominent conceptual and practical bootstrapping objections advanced by Barnett and Michelman. It then argues that the real conceptual root of such bootstrapping objections is not any specific substantive account of legitimacy makers, such as consent or democratic endorsement, but a particular conception of the logic of normative standards—the determinate threshold conception—that the critic attributes to the putatively undermined account of legitimacy. The paper further claims that when we abandon threshold conceptions of the logic of legitimacy in favor of regulative-ideal conceptions, then the objections, from bootstrapping paradoxes to the very idea of constitutional democracy, disappear. It concludes with considerations in favor of adopting a more demanding conception of the regulative ideal of constitutional democracy, advanced by Habermas, focusing on potentials for developmental learning.

This article explores the relationships between legal proof and fundamental epistemic concepts such as knowledge and justification. A survey of the legal literature reveals a confusing array of seemingly inconsistent proposals and presuppositions regarding these relationships. This article makes two contributions. First, it reconciles a number of apparent inconsistencies and tensions in accounts of the epistemology of legal proof. Second, it argues that there is a deeper connection between knowledge and legal proof than is typically argued for or presupposed in the legal literature. This connection is illustrated through a discussion of the Gettier problem in epistemology. It is argued that the gap or disconnect between truth and justification that undermines knowledge in Gettier cases also potentially undermines the success of legal verdicts.

It is difficult, if not impossible, to so define the term “reasonable doubt” as to satisfy a subtle and metaphysical mind, bent on the detection of some point, however attenuated, upon which to hang a criticism. —Supreme Court of VirginiaMcCue v. Commonwealth, 103 Va. 870 at 1002 (1905).

I find it rather unsettling that we are using a formulation that we believe will become less clear the more we explain it. —Jon Newman, Chief Judge of the U.S. Court of Appeals for the 2nd CircuitJon. O. Newman, Beyond “Reasonable Doubt,” N.Y.U. L. REV. 979, 984 (1993).

The complete lack of controversy that surrounds the reasonable doubt standard implies that we are pretty happy with the way the standard operates. —Erik LillquistErik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, U.C. DAVIS L. REV. 85, 190–191 (2002).

The aim of this essay is to develop a coherence theory for the justification of evidentiary judgments in law. The main claim of the coherence theory proposed in this article is that a belief about the events being litigated is justified if and only if it is a belief that an epistemically responsible fact finder might hold by virtue of its coherence in like circumstances. The article argues that this coherentist approach to evidence and legal proof has the resources to meet some of the main objections that may be addressed against attempts to analyze the justification of evidentiary judgments in law in coherentist terms. It concludes by exploring some implications of the proposed version of legal coherentism for a jurisprudence of evidence.

Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as theorists talking past one another.

For many years, moral philosophers have been debating the conceptual and moral status of the distinction between intending harm and (merely) foreseeing harm. In this paper, after surveying some of the objections to the moral significance of this distinction in general, I focus on the special case of state action, arguing that whatever reasons we have to be suspicious about the distinction's moral significance in general, we have very good reasons to believe it lacks intrinsic moral significance when applied to state action. After arguing for this claim, I pursue in a preliminary way some of its implications.

That law is coercive is something we all more or less take for granted. It is an assumption so rooted in our ways of thinking that it is taken as a given of social reality, an uncontroversial datum. Because it is so regarded, it is infrequently stated, and when it is, it is stated without any hint of possible complications or qualifications. I will call this the “prereflective view,” and I want to examine it with the care it deserves.

A little more than two years ago, a Texas woman, faced with a knife-wielding intruder demanding sex from her, tried to talk her attacker into wearing a condom to protect herself against the possibility of contracting AIDS. A grand jury refused to indict the man because jurors believed that the woman's act of self-protection implied that she had consented to sex.

Criminal law theorists overwhelmingly agree that for some conduct to constitute punishment, it must be imposed intentionally. Some retributivists have argued that because punishment consists only of intentional inflictions, theories of punishment can ignore the merely foreseen hardships of prison, such as the mental and emotional distress inmates experience. Though such distress is foreseen, it is not intended, and so it is technically not punishment. In this essay, I explain why theories of punishment must pay close attention to the unintentional burdens of punishment. In two very important contexts—punishment measurement and justification—we use the term “punishment” to capture not only intentional harsh treatment but certain unintentional harsh treatment as well. This means that the widely accepted view that punishment is an intentional infliction requires substantial caveats. It also means that any purported justification of punishment that addresses only the intentional infliction of punishment is woefully incomplete.

One of the dominant themes of the symposium from which this collection of articles arose was the ontological status of consent. Is consent a particular state of mind? Is it the signification of that state of mind via a conventionally recognized act? Or, is consent a normative concept that evaluates not only the presence of a state of mind or act, but also the appropriateness of that state of mind or act in the particular circumstances?

This paper attempts to identify a principle of equal treatment that gives specific structure to our widely shared judgments about the circumstances in which we have moral reason to object to the differential adverse treatment of others. I formulate what I call a “substantive” principle of equal treatment (to be distinguished from principles of formal equality) that describes a moral constraint on the reasons we can have for picking out individuals for differentially adverse action. I argue that this constraint is violated when an action, in view of its rationale, expresses lesser respect for the moral status of an individual under some differentiating description compared to the respect reserved to another class of individuals who are not picked out by that description. I show that this substantive demand of equal treatment is not morally otiose and I reveal the fallacy underlying accounts that have concluded otherwise.

Postema's article discusses, lucidly and probingly, a central jurisprudential idea, which he calls the autonomy thesis. In its general form it is shared by many writers who otherwise support divergent accounts of the nature of law. It is, according to Postema, a thesis that is meant to account for a core idea, that the law's “defining aim is to … unify public political judgment and coordinate social interaction.” In some form or another this core idea is probably supported by Postema himself. However, in this article his concern is to criticize what he takes to be the widespread belief that it is explained by the autonomy thesis. The autonomy thesis is flawed and must be rejected. In arguing to that conclusion he succumbs to one of the unattractive tendencies of contemporary legal and political philosophy, namely he does not discuss anyone's view, but a family of views. This allows one to construct one's target by selecting features from a variety of authors so that the combined picture is in fact no one's view, and all those cited as adhering to it would disagree with it.