Many liberal societies are deeply committed to freedom of speech. This commitment is so entrenched that when it seems to come into conflict with other commitments (e.g., gender equality), it is often argued that the commitment to speech must trump the other commitments. In this paper, we argue that a proper understanding of our commitment to free speech requires being clear about what should count as speech for these purposes. On the approach we defend, “speech” should get a special, technical sense, different from its ordinary sense. We offer a partial characterization of this technical sense. Finally, we argue that if certain theorists (e.g., MacKinnon) are right about what (some) pornography does, then it should fall outside the scope of the free-speech principle. If so, then contrary to first appearances, pornography may not be a case in which our commitments to freedom and gender equality come into conflict.

In procedural-law scholarship as well as in the theoretical analysis of the notion of proof as a result of the joint assessment of all items of evidence introduced in a trial, reference is frequently made to notions such as the conviction, belief, or certainty of a judge or a jury member about what happened. All these notions underscore the mental states involved in the process of determining the facts on the part of a judge or a jury. In this analysis, I look at the links between beliefs and the justification in the findings of fact provided by the judge or jury in her or its verdict.

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state's fiduciary duty to provide equal security under the rule of law, a duty that flows from the state's institutional assumption of irresistible sovereign powers.

Even to disagree, we need to understand each other. If I reject what you say without understanding you, we will only have the illusion of a disagreement. You will be asserting one thing and I will be denying another. Even to disagree, we need some agreement.

One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, what positivists say might well then be true of one thing (e.g., law1) but false of another (e.g., law2). Accepting this thesis does not mean that the philosophers engaged in this dispute are “talking past each other” or engaged in a “merely verbal dispute” that lacks substance. I argue that participants in this dispute are sometimes arguing about what they should mean by the word “law” in the context at hand. This involves putting forward competing proposals about which concept the word “law” should be used to express. This is an issue in what I call “conceptual ethics.” This argument in conceptual ethics can be well worth having, given the connotations that the term “law” plays in many contexts, ranging from legal argument to political philosophy to social-scientific inquiry. Sometimes, I claim, philosophers (and ordinary speakers) engage in such argument tacitly by competing “metalinguistic” usages of the term “law”—usages of the term that express a view (in this case, a normative view) about the meaning of the word itself. In such cases, speakers on different sides of the positivism debate might in fact both speak truly, in terms of the literal (semantic) content of what they both say. Nonetheless, they may disagree in virtue of views in conceptual ethics about “law” that they express through the nonliteral content of what they say. These views in conceptual ethics often reflect further disagreements about issues that are not ultimately about words or concepts. These include foundational ones in ethics and politics about how we should live and what kind of institutions should govern our lives. My metalinguistic account of the dispute over legal positivism better equips us to identify what such issues are and to engage them more fruitfully.

In a recent paper, Michael Pardo argues that the epistemic property that is legally relevant is the one called Safety, rather than Sensitivity. In the process, he argues against our Sensitivity-related account of statistical evidence. Here we revisit these issues, partly in order to respond to Pardo, and partly in order to make general claims about legal epistemology. We clarify our account, we show how it adequately deals with counterexamples and other worries, we raise suspicions about Safety's value here, and we revisit our general skepticism about the role that epistemological considerations should play in determining legal policy.

Law being a derivative feature of reality, it exists in virtue of more fundamental things, upon which it depends. This raises the question of what is the relation of dependence that holds between law and its more basic determinants. The primary aim of this paper is to argue that grounding is that relation. We first make a positive case for this claim, and then we defend it from the potential objection that the relevant relation is rather rational determination.1 Against this challenge, we argue that the apparent objection is really no objection, for on its best understanding, rational determination turns out to actually be grounding. Finally, we clarify the framework for theories on law-determination that results from embracing our view; by way of illustration, we offer a ground-theoretic interpretation of Hartian positivism and show how it can defuse an influential challenge to simple positivist accounts of law.

What restrictions are there on the scope of the criminal law? One familiar suggestion is that it is wrong to criminalize conduct that is not harmful. Another suggestion is that it is wrong to criminalize conduct if criminalizing that conduct does not prevent harm. The first suggestion focuses on the conduct criminalized. The second focuses on the effects of the decision to criminalize. A third suggestion is that it is wrong to criminalize conduct if that conduct does not wrongfully interfere with the sovereignty of others. None of these suggestions points to a valid principle of criminalization, though each points to part of the truth. Versions of the harm principle can deal with some familiar objections but cannot explain why it is permissible to criminalize interference with some nonharmful conduct, for example, interference with self-sacrificial acts. The sovereignty principle can explain the cases that the harm principle struggles with. But it makes the permissibility of preventing harm through the criminal law depend on interference with sovereignty. This is not attractive either with respect to the protection of those who have the capacity for sovereignty but especially with respect to the protection of those who do not. I conclude that any valid principle of criminalization will be complex, drawing on two independent ideas: of harm and of interference with sovereignty.

Joel Feinberg's brief against legal paternalism, which is the central focus of his Harm to Self, is undoubtedly the most scrupulous, nuanced, and thorough critique of the view yet provided by a liberal philosopher. I was once convinced of Feinberg's case and am now less sure. This makes me uneasy, both because I have strong liberal instincts that I would prefer to be able to justify, and also because I suppose I have not thought about the matter with the kind or degree of care that Feinberg himself did. In assessing his antipaternalist arguments, I include here a number of excerpts from Feinberg's own writings to remind us of his subtlety and precision, his broad range of references, his elegant and informed style, his sound good sense, his ability to provide the revealing, compelling example, and his supple cast of mind. That my commentary is bound to pale by comparison is inevitable, but I take some comfort in thinking that one cannot be held liable for what cannot be helped.

Much time has been spent arguing about the soundness of “the harm principle.” But in the philosophical literature there is no single such principle; there are many harm principles. And many objections pressed against “the harm principle” are objections to only some of these principles. The first half of this paper draws a number of distinctions between harm principles. It then argues that each harm principle is compatible with many other principles that impose limits on the law, including but not limited to other harm principles. The second half of the paper applies the lessons of the first to a number of prominent objections to “the harm principle.” That principle has been accused of a) being underinclusive; b) misrepresenting the reasons why many act-types ought to be legally proscribed; c) permitting lawmakers to treat people as mere means of achieving their ends; and d) being overinclusive. The paper argues that one harm principle survives all four objections.

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.

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience.

What makes careless conduct careless is easily one of the deepest and most contested questions in negligence law, tort theory, and moral theory. Answering it involves determining the conditions that make the imposition of risk unjustifiable, wrong, or impermissible. Yet there is a still deeper as well as overlooked and undertheorized question: Why does subjecting others to risk of harm call for justification in the first place? That risk can be impermissibly imposed upon others—that is, the very possibility of negligence—presupposes that imposing risk is the kind of thing that can be impermissible. Unless imposing risk can be impermissible after all, unjustified risking is literally impossible. In this discussion, I explore what I call the moral significance of risking, arguing that the moral significance of risking resides in a certain kind of nonmaterial autonomy interest that is implicated whenever one imposes risk of harm on another.

There are two questions I would like to address in this article. The first and main question is whether there are rules of recognition, along the lines suggested by H.L.A. Hart. The second question concerns the age-old issue of the autonomy of law. One of the main purposes of this article is to show how these two issues are closely related. The concept of a social convention is the thread holding these two points tightly knit in one coil. Basically, I will argue that a novel account of social conventions can be employed to reestablish Hart's thesis about the rules of recognition, and that this same account shows why, and to what extent, law is partly an autonomous practice.

INTRODUCTION

Economic accounts of tort law tell us why tortfeasors face monetary sanctions for certain sorts of conduct. That is not enough, according to corrective justice theorists Jules Coleman and Ernest Weinrib.See, e.g., Jules L. Coleman, RISKS AND WRONGS (1992); Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995). See also Arthur Ripstein, EQUALITY, RESPONSIBILITY ANDTHE LAW (1998); Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992). Economic theoriesThe most thorough, and impressive, attempt to provide a positive theory of tort law from an economic perspective is that of William Landes and Richard Posner. William M. Landes & Richard A. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987). See also, Guido Calabresi, THE COSTS OF ACCIDENTS (1970); Steven Shavell, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987); Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960). do not offer an adequate explanation of why the defendant is required to pay these monetary sanctions to the plaintiff. Perhaps some argument can be made that it is efficient to reward private parties for bringing tort actions. Yet even if this were plausible, it would make the plaintiff-driven nature of tort law a purely contingent matter. The plaintiff-defendant structure of tort law is essential to it, not merely contingent. The economic account is therefore fatally flawed, like an account of the criminal law that fails to mention the role of the state, or an account of Shakespeare’s literary genius that fails to mention his poetry. This is called the “bipolarity” critique of law and economics.

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.

This paper seeks to determine the significance, if any, of epidemiological evidence to prove the specific causation element of liability in negligence or other relevant torts—in particular, what importance can be attached to a relative risk (RR) > 2, where that figure represents a sound causal inference at the general level. The paper discusses increased risk approaches to epidemiological evidence and concludes that they are a last resort. The paper also criticizes the proposal that the probability of causation can be estimated with reference to the RR, such that RR > 2 is necessary and sufficient for causation. It is argued, following arguments by Sander Greenland and others, that RR > 2 is not necessary for proof of specific causation, except under restrictive biological assumptions that are not known to be satisfied for any important disease, and therefore must never be required. However, the paper argues that in some circumstances RR > 2 can be sufficient to prove causation at law. This position is defended against the widely held judicial and academic view that epidemiological evidence must be accompanied by something else, particular to the case at hand, if it is to have probative force for specific causation. It is argued that far from being epistemically irrelevant, to achieve correct and just outcomes it is in fact mandatory to take (high-quality) epidemiological evidence into account in deciding specific causation. Failing to consider such evidence when it is available leads to error and injustice. The conclusion is that in certain circumstances epidemiological evidence of RR > 2 is not necessary to prove specific causation but that it is sufficient. This “sufficiency” is confined to circumstances where there is no other evidence, as a way of getting clear on what the epidemiological evidence says. Once we have worked out what it says, this must be weighed against the other relevant evidence, if there is any.

This article has two broad purposes. First, as a political philosopher who has been interested in the concepts of coercion and exploitation, I want to consider just what the analysis of the concept of consent can bring to the question, what sexually motivated behavior should be prohibited through the criminal law? Put simply, I shall argue that conceptual analysis will be of little help. Second, and with somewhat fewer professional credentials, I shall offer some thoughts about the substantive question itself. Among other things, I will argue that it is a mistake to think that sexual crimes are about violence rather than sex and that we need to understand just why the violation of sexual autonomy is a serious wrong. I shall also argue that the principle that “no means no” does not tell us when “yes means yes,” and that it is the latter question that poses the most interesting theoretical difficulties about coercion, misrepresentation, and competence. In addition, I shall make some brief remarks concerning two questions about consent and sexual relations that lie beyond the criminal law: What “consent compromising behaviors” should be regarded as indecent, although not criminal? When should someone consent to sexual relations within an enduring relationship?