“Sucks and stones will break my bones,” Justice Scalia pronounced from the bench in oral arguments in Schenck v. Pro-Choice Network, “but words can never hurt me. That's the First Amendment,” he added. Jay Alan Sekulow, the lawyer for the petitioners, anti-abortion protesters who had been enjoined from moving closer than fifteen feet away from those entering an abortion facility, was obviously pleased by this characterization of the right to free speech, replying, “That's certainly our position on it, and that is exactly correct …”

The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for “wrongful” acts reflect corrective justice rather than welfarist norms. The literature either is silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful but risky acts. This is no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives.

Judges and lawyers believe that international law, customary law, and legal systems such as the Third Reich or apartheid law in South Africa are law. But how do we explain the fact that there is one concept of law when there are different conceptions of law with a variety of different features? Finnis, inspired by the Aristotelian notion of central case, adumbrates the idea that the concept of law might be unified by a primary concept which is the concept of “law as practical reason”; that is, law conceived from an ethical perspective. He advances two arguments to defend his methodology: the conceptual and the functional. Contra Finnis, the paper shows that neither the conceptual nor the functional argument can successfully support the view that “law as practical reason” is the central case of the concept of law. The study clarifies the Aristotelian notion of central case and illustrates the mistaken application of this notion to the concept of law. However, we also argue that Finnis's insight–the idea that all the different conceptions of law might be unified for the purposes of theoretical research–is fundamental and appealing. This paper aims to reconstruct Finnis's insight through the model of core resemblance. The result is that the different conceptions of law can be unified by resemblance to the concept of “law as practical reason,” though there is no identity among the different conceptions of law.

Egalitarian theories of religious freedom deny that religion is entitled to special treatment in law above and beyond that granted to comparable beliefs and practices. The most detailed and influential defense of such an approach is Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution (2007). In this essay I develop, elucidate, and show the limits of the “reductionist” strategy adopted by Eisgruber and Sager. The strategy requires that religion be analogized with other beliefs and practices according to a robust metric of comparison. I argue that Eisgruber and Sager fail to develop a consistent and coherent metric and I further suggest that this failure is symptomatic of the broader difficulty encountered by liberal theory in fitting the concept of religious freedom into a broadly egalitarian framework.

A central tenet of positivism is that social practices are at the foundations of law. This has been cashed out in a variety of ways. For example, Austin argues that, among other practices, a habit of obedience to a sovereign is at the foundations of law, and Hart argues that at the foundations of law is the converging attitudes and behaviors of a class of relevant officials. Since Hart, some prominent positivists have employed either David Lewis's analysis of conventions or Michael Bratman's theory of shared cooperative activities to develop new accounts of the social practices that are at the foundations of law, whatever those foundations might be. In this paper, I identify five features characteristic of the Lewisean and Bratmanian models of social facts—models of what I call hypercommittal social practices. I then show that models of social facts that have these features ought not to be used to explain the way in which a social practice is at the foundations the law. I conclude that hypercommittal social practices such as Lewisean conventions or Bratmanian shared activities are not at the foundations of law.

The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s—the Vietnam War and the North-South economic imbalance—have returned to the domain of philosophers. This engagement has taken place in two distinct but related debates. First, philosophers have devoted attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits disparate treatment of an individual's co-nationals. Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as Brian Barry put it, “given a world that is made up of states, what is the morally permissible range of diversity among them?” One impetus for renewed work on these ideas was the publication of John Rawls's The Law of Peoples.

It is widely accepted that vagueness in law calls for a specific interpretation of the law—interpretation that changes the meaning of the law and makes it more precise. According to this view, vagueness causes gaps in the law, and the role of legal interpretation in the case of vagueness is to fill such gaps. I argue that this view is mistaken and defend the thesis that vagueness in law calls only for an application of the law to the case at hand, leaving the meaning of the law intact.

Following Wesley Hohfeld's pioneering analyses, which demonstrated that the “folk” concept of ownership conflated a variety of distinct legal relations, a deflationary “bundle theory” regarding those relations as essentially unconnected held sway for much of the subsequent century. In recent decades, this theory has been thought too diffuse; it seems counterintuitive to insist, for instance, that rights of possession and alienation over a property are associated only contingently. Accordingly, scholars such as James Penner and James Harris have advanced theories that revive the concept of ownership, identifying some instances of property as “paradigmatic,” and regarding others as conceptually subsidiary. I propose a new interpretation of the bundle theory, based on David Lewis's idea of “Humean supervenience” among physical particles. I critically examine the major antibundle positions, arguing that their criticisms result from confusion about the claims of the bundle theory, which remains the best account of property rights available.

It is a familiar slogan in legal circles that “like cases should be treated alike.” This idea is often confused with two others: the rationale of analogical reasoning in adjudication, and the value of coherence. I would like to keep these three issues separate, at least for a while. What is unique about idea of treating like cases alike? I would suggest that the interesting cases (and by “cases,” I do mean judicial decisions, to which this essay is confined) are those in which legal decisions are not entirely determined by reasons. If two similar cases are actually determined by the reasons that apply to them, then there is no need for the principle of treating like cases alike: The determining reasons would do all the work of justifying similar rulings. This is what makes the principle of treating like cases alike uniquely problematic and separate from the questions of analogical reasoning and coherence. In analogical reasoning, for example, the assumption is that if there is a good reason that determines a decision X under circumstances C1, and we now face a similar case C2, then the reason that determines X in C1 may also determine (or support) the decision X under C2. In other words, analogical reasoning typically appeals to the reasons that underlie the previous decision(s) and extends the application of those reasons to the new case. (I will qualify this account of analogy in the last section.)

Contemporary legal philosophers have focussed their attention on two aspects of the general theory of authority: the issue of legitimacy (or the right to govern) and the issue of obligation (or the duty to obey). In John Finnis's work we have a powerful statement of the importance of a third issue: the problem of governance (or the duty to govern). This paper explores the nature of this duty, its foundations, and its relation to the other aspects of a theory of authority.

“Justice,” wrote John Rawls, at the beginning of his magisterial work on the subject, “is the first virtue of social institutions, as truth is of systems of thought.”A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. [TJ3]

The most powerful response to growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of an owner's rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies—rather than merely explanatory gaps—that render it unable to overcome the specter of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and nonowners. In place of the right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a nonowner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about the point of ownership rights and responsibilities.

In all cases of penal procedure, the declared supposition is, that the party accused is innocent; and for this supposition, mighty is the laud bestowed upon one another by judges and law-writers. This supposition is at once contrary to fact, and belied by their own practice…. The defendant is not in fact treated as if he were innocent, and it would be absurd to deal by him as if he were. The state he is in is a dubious one, betwixt non-delinquency and delinquency: supposing him non-delinquent, the[n] immediately should that procedure against him drop; everything that follows is oppression and injustice.

—Jeremy BenthamJEREMY BENTHAM, PRINCIPLES OF JUDICIAL PROCEDURE 169 (1829).

If the presumption of innocence is not sacred in our system then what is to become of us?

—Judge Reta Strubhar (Oklahoma Court of Criminal Appeals)Flores v. Oklahoma, 1995 OK CR 31 (Okla. Crim. App. 1995).

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given rise to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction (for violating a state-issued prohibition) on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction.

Why do we fear preventive detention and believe that it requires special justification? Citizens in free, democratic societies are accustomed to substantial limitations on liberty that are justified morally and politically by the “common good.” Avoiding serious danger is a greater good than most, but the power of the state to confine dangerous people or to reduce danger by equally oppressive intrusions is considered especially fearsome. The usual, and generally uncontroversial, justifications given for such deprivations of liberty are that the person has culpably committed a criminal offense or that the agent is not responsible for the danger he or she presents. Criminal imprisonment and various forms of civil commitment, for example, which preempt potentially dangerous conduct by incapacitation, are considered reasonable deprivations of liberty in such cases. But in neither case is the state confining on purely preventive grounds a responsible agent who has done no wrong. In contrast, pure preventive detention is an anathema, we believe, because polities devoted to liberty and autonomy have no moral or political warrant to confine or similarly oppress innocent, responsible agents. What could justify such a vast intrusion on the liberty of such agents to pursue their projects?I recognize that the state has an uncontroversial right to quarantine innocent, responsible agents if such agents have communicable diseases and no less intrusive intervention will prevent infection of others. Although many forms of communicable disease can be spread by conduct, the justification of pure quarantine requires no action or potential action. It is a purely public health measure directed toward microorganisms that has the undesirable effect of limiting freedom of action. This article addresses only the preemption of dangerous conduct, which might in some cases include the transmission of disease. See generally Michael Corrado, Punishment, Quarantine, and Preventive Detention, 15 Crim. Just. Ethics 3 (Summer/Fall 1996).

I. LEGAL POSITIVISM AND JOINTLY INTENTIONAL ACTION

Shapiro asks: “[W]hat ultimately makes it the case that a particular legal system has a particular authority structure?” (p. 388).1. This is a revised version of my response to Scott Shapiro’s Law, Plans, and Practical Reason address at the Yale Workshop on Participation and Commitment in Law, Politics, and Morality (October, 2001). Parenthetical page references are to Shapiro’s paper on p. 387 in this issue. “The legal positivist answer,” Shapiro notes, “would not point to a moral fact but rather to a social fact.” In the case Shapiro highlights, for example, the legal “positivist would argue that it is simply true by legal convention that the United States Constitution is the law of the United States” (p. 388). Shapiro aims at developing a novel version of this answer. On his view, the determinants of legal authority are certain structures of intentions and plans embedded in jointly intentional activities in which relevant legal officials are engaged. The problem of legal authority is in part a problem in the philosophy of social action.2. Shapiro is not alone in taking some such tack. Both Jules Coleman and Christopher Kutz, in part under Shapiro’s influence, have also pursued related ideas. Coleman, THE PRACTICE OF PRINCIPLE (Oxford, 2001), see lecture 7; Kutz, The Judicial Community, 11 PHILOSOPHICAL ISSUES 442-469 (2001). Coleman appeals to a strong form of shared activity, namely shared cooperative activity; Kutz appeals to a rather weak form of collective activity. The jointly intentional activity to which Shapiro appeals is in a middle ground here.

The American Legal Realists, as I read them, are tacit legal positivists: they presuppose views about the criteria of legality that have affinities with positivist accounts of law in the sense that they employ primarily pedigree tests of legal validity. Ever since Ronald Dworkin's well-known critique of H.L.A. Hart's positivism a generation ago, however, it has been hotly contested whether there is anything about positivism as a legal theory that requires that tests of legal validity be pedigree tests. So-called Soft or Inclusive versions of positivism are willing to relax the restrictions on the content of a Rule of Recognition to admit non-pedigree criteria of legal validity; Hard or Exclusive versons of positivism deny that such a move is compatible with the central commitments of positivism. Hard Positivism, of which Joseph Raz has been the leading proponent, thus competes with various Soft Positivisms, defended by, among others, Coleman, Lyons, Soper, Waluchow, and now, explicitly, Hart himself in the “Postscript.” If the Realists are positivists, as I claim, then it cannot be the case that Soft Positivism is a genuinely positivistic doctrine. But there is more at stake here than just labels. Realist arguments for the indeterminacy of law—arguments central to the whole Realist enterprise—depend crucially on their tacit Hard Positivism. If, in fact, positivism has a more relaxed view of the criteria of legality than Hard Positivism supposes, then Realist arguments depend on unsound tacit premises about legal validity. What is at stake, then, is not whether Realists should be called (tacit) “Positivists” or merely (tacit) “Hard Positivists,” but whether their underlying view of the criteria of legality is sound. It can only be so if the best arguments favor Hard Positivism.

Some people hate themselves. But if I say, “I hate myself,” who is this “I” that stands apart from “myself”? And notice how in the expression “I am not myself today,” the “I” and “myself” change places. Now it is “myself” who is the authentic, the authoritative, the judgmental “I,” and it is “I” who is the self that is judged and found wanting. Some people talk to themselves; when they do, who is speaking and who is listening?

The disadvantaged have incentives to commit crime, and to develop criminogenic dispositions, that limit the extent to which their co-citizens can blame them for breaking the law. This is true regardless of whether the causes of criminality are mainly “structural” or “cultural.” We need not assume that society as a whole is unjust in order to accept this conclusion. And doing so would neither stigmatize nor otherwise disrespect the disadvantaged.