This paper takes it as a premise that a distinction between matters of fact and of law is important in the causal inquiry. But it argues that separating factual and legal causation as different elements of liability is not the best way to implement the fact/law distinction. What counts as a cause-in-fact is partly a legal question; and certain liability-limiting doctrines under the umbrella of “legal causation” depend on the application of factual-causal concepts. The contrastive account of factual causation proposed in this paper improves matters. This account more clearly distinguishes matters of fact from matters of law within the cause-in-fact inquiry. It also extends the scope of cause-in-fact to answer some questions currently answered by certain doctrines of legal causation—doctrines that, it is argued, are more naturally seen as applications of our ordinary causal concept than as noncausal liability-limiting devices.

At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious aspects of die marital rape exception; most have abandoned the “utmost resistance” requirement; and all have enacted rape shield laws to protect complaining witnesses from intrusive inquiries into their sexual history. All three reforms were the product of feminist agitation, all three were aimed toward the general end of redirecting rape law toward the protection of women's, rather than men's, interests, and all three did, to some degree, broaden and democratize the scope of the law's protection: Wives, prostitutes, promiscuous girls, and women not inclined to risk their deaths by fighting off their rapists “to the utmost” are now protected by the law of rape against sexual assault, at least in theory, and at least to the same degree as non-wives and non-prostitutes, fighters, and virgins. All of this, virtually every contributor to this symposium agrees, is very much to the good.

Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know “what the law is” without resort to evaluative considerations. I distinguish between two senses of “what the law is”: in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal positivists have explicitly said) as a claim about legal content. Understood this way, however, it is open to the objection that knowing the content of legal norms requires evaluative considerations for reasons similar to those offered by positivists for thinking that legal theory is requires evaluative considerations. I then distinguish between evaluative considerations in general and moral considerations and argue that because of the subject-matter of legal norms, there are good reasons for thinking that it is moral considerations, and not just any other evaluative considerations, that are required for knowing the content of legal norms.

In addition to normative powers by which we alter our rights and duties, we can also forfeit rights. Culpable aggression forfeits the aggressor's right against the victim's use of defensive force. So, what happens when an aggressor “fakes it”? If a culpable aggressor is simply bluffing, has he still forfeited his rights? Because there is no threat, leading accounts of self-defense deny that there is forfeiture.

This paper argues that individuals alter their rights and duties through insincere acts. Specifically, when one person culpably causes another person to believe that a normative power has been exercised or a right forfeited, that normative power is in fact exercised or the right is forfeited. An insincere promise counts as a promise; insincere consent counts as consent; and insincere abandonment counts as abandonment. And, the insincere threat forfeits the bluffer's rights to the same extent as a real threat would.

In a recent paper, “How Facts Make Law,” I launch an attack on a fundamental doctrine of legal positivism. I argue that nonnormative facts cannot themselves constitutively determine the content of the law. In a response published in this journal, Ram Neta defends the view that nonnormative social facts are sufficient to determine normative facts, including both moral and legal facts. Neta's paper provides a useful opportunity to address a spelled-out version of this view, which in various forms is widely held in philosophy of law and other areas of philosophy. I begin by addressing Neta's attempts to show that descriptive facts can alone determine moral and legal facts. First, Neta's account of why it is wrong to break promises fails. In addition to other problems, it begs the question by taking for granted that a person's desires or other motivational states necessarily justify the actions that they motivate. Next, I turn to Neta's attempt to provide a counterexample to my view about law. In my original paper, I claim that the nature of the constitutive determination relation in the legal domain is what I call rational determination. Roughly speaking, a full constitutive account of the legal facts must include reasons that explain the relation between the determining facts and the legal facts. The facts on which Neta's putative counterexample depends cannot be reasons of the required sort because they take for granted what they are supposed to explain—the way in which nonnormative social facts contribute to the content of the law. Finally, I address the larger issue of how far my argument applies to other domains. I consider and reject Neta's argument that purports to show that all normative domains have the relevant features of the legal domain. I then sketch a competing picture of some normative domains.

This essay examines the ambition to taxonomize law and the different methods a legal taxonomer might employ. Three possibilities emerge. The first is a formal taxonomy that classifies legal materials according to rules of order and clarity. Formal taxonomy is primarily conventional and has no normative implications for judicial decision-making. The second possibility is a function-based taxonomy that classifies laws according to their social functions. Function-based taxonomy can influence legal decision-making indirectly, as a gatekeeping mechanism, but it does not provide decisional standards for courts. Its objective is to assist in analysis and criticism of law by providing an overview of the body of legal doctrine. The third possibility is a reason-based taxonomy that classifies legal rules and decisions according to the moral principles or “legal principles” thought to justify them. Reason-based taxonomy of this type offers courts a set of high-level decisional rules drawn from legal data. Its objective is to guide courts in deciding new cases and evaluating precedents. A predominantly formal taxonomy facilitates legal analysis and communication. A functional taxonomy can assist those who make and apply law by providing a purposive overview of the field. Reason-based taxonomy may be useful to lawmakers but is unhelpful when offered as a guide to adjudication of disputes.

In recent times, especially in the pages of this journal, the debate between the proponents of the two principal species of legal positivism has gained new vigor. Specifically, some champions of Exclusive Legal Positivism have sophisticatedly challenged the Inclusive Legal Positivists’ claim that moral principles can figure among the criteria by which the officials of a legal system ascertain the law. The present essay attempts to parry the most formidable of those recent challenges.My focus will lie chiefly on Scott Shapiro, On Hart’s Way Out, 4 LEGAL THEORY 469 (1998) [hereinafter cited as Shapiro, Way]. For a couple of other recent contributions to the debate, from the camp of Exclusive Legal Positivism, see Scott Shapiro, The Difference that Rules Make, in Brian Bix (ed.), ANALYZING LAW 33, 56–61 (1998); Brian Leiter, Realism, Hard Positivism, and Conceptual Analysis, 4 LEGAL THEORY 533 (1998).

What is the relationship between a theory of permissible criminalization and a theory of permissible state punishment? One answer runs as follows: to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. The latter set of conditions doubles as part of the former set. Call this the punishment thesis. It is a thesis with some prominent advocates, but explicit defenses are hard to find. In this paper, I ask how such a defense might proceed. Section I clarifies the punishment thesis itself. Sections II–IV consider a number of arguments in its favor. My contention is that none of these arguments succeeds. Unless a better argument can be found, we should reject the punishment thesis.

Discussions of political obligation and authority have focused on the idea that the commands of genuine authorities constitute content-independent reasons. Despite its centrality in these debates, the notion of “content-independence” is unclear and controversial, with some claiming that it is incoherent, useless, or irrelevant. I clarify content-independence by focusing on how reasons can depend on features of their container. I then show how the fact that laws can constitute content-independent reasons is consistent with the fact that some laws must fail to bind due to their egregiously unjust content. Finally, I defend my understanding against challenges and show why it retains a place of special importance for questions about the law and political obligation. Content-independence highlights that it is some feature of the law or law-making process in general that is supposed to generate moral obligations for citizens, not the merits of particular laws.

This paper develops a Lockean account of literary property. Seana Shiffrin has recently argued, on the basis of an egalitarian interpretation of Locke's theory of property, that the Lockean view does not justify property rights in intellectual works. I argue that Shiffrin fails to take an important strand of Locke's view into account, namely, the view that makers have rights to what they have made. If this aspect of Locke's view is given its proper place, a plausible Lockean account of property in literary works can be developed. This account of literary property places us in a better position to appreciate both the strengths and weaknesses of the Lockean theory of intellectual property.

Reactive emotion accounts hold that blameworthiness should be analyzed in terms of the familiar reactive emotions. However, despite the attractions of such views, we are not persuaded that blameworthiness is ultimately a matter of correctly felt reactive emotion. In this paper, we draw attention to a range of little-discussed considerations involving the moral significance of the passage of time that drive a wedge between blameworthiness and the reactive emotions: the appropriateness of the reactive emotions is sensitive to the passage of time in ways that attributions of blameworthiness are not. There are a number of ways in which reactive emotion accounts might attempt to accommodate the moral significance of time, however. We consider the most important of these but ultimately find them wanting. Accordingly, we conclude that the prospects for the reactive emotion accounts are bleak. Our argument, if successful, has a range of implications for legal theory, most importantly in providing a novel moral basis for statutes of limitations and in shedding light on new avenues in the theory of criminal law generally.

One of the distinctive features of the obligation to obey the law is its content-independence. We ought to do what the law commands because the law commands it, and not because of the law's content—i.e., the independent merits of the actions it prescribes. Despite its popularity, the notion of content-independence is marked by ambiguity. In this paper, I first clarify what content-independence is. I then develop a simple test—the “content-independence test”—which allows us to establish whether any candidate justification of the obligation to obey the law delivers genuine content-independence. I apply this test to prominent such justifications and conclude that several of them, surprisingly, fail it.

Prior to the publication of Hart's The Concept of Law, it was not uncommon for legal philosophers to identify jurisprudence with the quest for a definition of “law.”The subject of this paper is “law” as it pertains to systems of governance of human conduct. Therefore we are not offering an analysis of “law” as it pertains to regularities in nature and thus we do not explore the semantic or metasemantic relations between the two.See, for example, Herman Kantorowicz, THE DEFINITION OF LAW (Cambridge University Press, 1958). In a similar vein, see Lewis Zerby's suggestion that “the most famous definition of law [sic]… is that made by Justice Holmes when he said: ‘The prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by law.‘” Some Remarks on the Philosophy of Law, 46 J. PHIL. 773–779 (1949). Hart explicitly resisted this characterization of the ambition of jurisprudence; the subject matter of jurisprudence is law, not “law.” Notwithstanding Hart's assertions to the contrary, in Law's Empire Ronald Dworkin argues that Hart's own legal positivism as well as other familiar jurisprudential theories (like natural law) are semantic theories: that is, accounts of the meaning of “law.” Dworkin further identifies semantic theories with criterialism, according to which the meaning of a term is given by shared criteria for applying it. The meaning of the expression “law” on this view is given by a rule or set of criteria specifying the conditions that must be satisfied in order properly to employ that expression, and the project of a semantic jurisprudence is to identify that rule.

What is distinctive about a feminist analysis of law? Conversely, what does it mean to characterize the law (or a law) as distinctively “male” as a way of criticizing its injustice? It is widely assumed by both feminist scholars and nonfeminists or curious onlookers that a feminist analysis of law must have distinctive features that set it off from mainstream/“malestream” theories of law. Feminist scholars often try to “sell” feminist analysis to interested newcomers and try to break down the recalcitrance of those who seem to want to marginalize and dismiss it precisely by claiming a difference of perspective for feminist analysis of which no well-educated lawyer or legal commentator can afford to be ignorant. Meanwhile, feminist claims are also challenged by those who think they can reach the same conclusion on independent grounds for therefore not being distinctively feminist; “What makes that particularly feminist?” the communitarian, for example, will ask, faced with an argument that feminism is critical of the individualistic bias of the legal system.

This paper offers a novel substantive justification for mandatory electoral quotas—e.g., gender or racial quotas—and a new methodological approach to their justification. Substantively, I argue for a political egalitarian account of electoral quotas. Methodologically, based on this account and a political egalitarian grounding of political participatory rights, I offer an alternative to the External Restriction Approach to the justification of electoral quotas. The External Restriction Approach sees electoral quotas as at best justified restrictions on political participatory rights. I argue for the Internal Restriction Approach instead, which can justify electoral quotas by specifying the pro tanto scope of political participatory rights rather than by justifying restrictions on the pro tanto scope of these rights. On this approach, adequately set electoral quotas do not even conflict with and are not balanced against political participatory rights, while electoral quotas—when justified—are pro tanto required rather than merely permitted.

Can two individuals, each of whom needs a certain resource for his survival, have equal and conflicting rights to that resource? If so, is each entitled to try to exclude the other from its use? An old chestnut of moral and legal philosophy raises the problem. Following a shipwreck, two men converge simultaneously on a plank floating in the sea. There is no other plank available and no immediate hope of rescue. Unfortunately the plank can support only one; it sinks if two try to cling to it. Is it permissible for each to attempt to secure his own survival by pushing the other off the plank?

There are many categories of action to which specific acts belong only if performed with some particular intention. Our commonsense concepts of types of action are sensitive to intent—think of the difference between lying and telling an untruth, for instance—but the law is replete with clear and unambiguous examples. Assault with intent to kill and possession of an illegal drug with intent to distribute are both much more serious crimes than mere assault and mere possession. A person is guilty of a crime of attempt—attempted murder, for instance, or attempted rape—only if that person had the intention to perform a crime. Under the federal carjacking law, an act of hijacking an automobile counts as carjacking only if performed with the intention to kill or inflict serious bodily harm on the driver of the car. In all of these cases, the question of whether or not a particular defendant had the precise intention necessary for the crime can make a huge difference, often a difference of years in prison, but sometimes literally a difference of life or death; sometimes whether the crime is one for which the death penalty can be given turns solely on the question of whether or not the actor had the relevant intention.

This paper offers a critical reconsideration of the traditional doctrine that responsibility for a crime requires a voluntary act. I defend three general propositions: first, that orthodox Anglo-American criminal theory (as represented by Michael Moore's updating of Austin's volitionalism) fails to explain adequately why criminal responsibility requires an act. Second, when it comes to the just definition of crimes, the act requirement is at best a rough generalization rather than a substantive limiting principle. Third, that the intuition underlying the so-called “act requirement” is better explained by what I call the “practical-agency condition,” according to which punishment in a specific instance is unjust unless the crime charged was caused or constituted by the agent's conduct (broadly understood) qua practically rational agent. The practical-agency condition is defended as a reconstruction of what is worth retaining in Anglo-American criminal law's traditional notion of an “act requirement.”

“The Trolley Problem” is the name Judith Jarvis Thomson has given to a difficult problem in moral philosophy and legal theory. The problem arises by considering a series of cases, all of which involve a choice of evils. Many, but not all of these cases, involve an out-of-control trolley about to run over a group of five people. In each case we are asked for our intuitive judgment as to whether it would be permissible to save the five people at risk when doing so would require the death of, or the imposition of a high risk of death on, another human being.