The widespread antipathy to Hart's description of international law as a simple or primitive social order, one that lacks a rule of recognition and therefore does not qualify as a legal system, rests on two misunderstandings. First, the absence of a division of labor in identifying, altering, applying, and enforcing law is as much, if not more, central to Hart's understanding of what makes a society primitive as is the absence of any secondary rules at all. Second, it is primarily in terms of the presence of such a division of labor and the implications it has for the ontology of law that Hart understands the idea of a legal system and the ideas of a rule of recognition and legal validity that accompany it. Interpreted in light of these claims, Hart's characterization of international law is quite plausible; moreover, embracing it may well provide both theoretical and moral benefits.

“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.

This paper investigates the process of reasoning through which a judge determines whether a precedent-case gives her a binding reason to follow in her present-case. I review the objections that have been raised against the two main accounts of reasoning by precedent: the rule-account and the analogy-account. I argue that both accounts can be made viable by amending them to meet the objections. Nonetheless, I believe that there is an argument for preferring accounts that integrate analogical reasoning: any account of reasoning by precedent that is descriptively minimally adequate will leave some room for judicial discretion. Discretion should be used under consideration of the best legally relevant arguments for and against a decision. Integrating analogical reasoning helps the judge to bring to her own attention the strongest case for following. Analogical reasoning also eases the recognition of possible reasons for distinguishing. Thereby, it facilitates a more balanced decision-making process.

I. INTRODUCTION

Ian McEwan’s Enduring Love opens with a scene as powerful as any novel has given us in recent years: The pilot of a hot-air balloon, down in a field, is struggling against a sudden gust to get control; the balloon’s basket contains a child, perhaps the pilot’s son. The novel’s narrator, lunching in the countryside, realizes with horror that the pilot cannot gain control, that the balloon will be lifted up by the wind and almost certainly blown into high-tension lines nearby. Fortunately there are some others who have also spotted the problem, and the narrator and they converge on the balloon to help the pilot secure it. They are eager but uncoordinated; as McEwan says: “There may have been a communality of purpose, but we were never a team.”

An often overlooked aspect of the interpretive theory of intentionalism is the extent to which it relies on the notion of counterfactual intention. Intentionalism is the thesis that the interpretive meaning of legal texts is determined by the author’s intentions at the time of writing.Examples of writers who endorse different kinds of intentionalism for different reasons are the following: Alexander (1995); Goldsworthy (1997); MARMOR (1992), esp. p. 176ff; and Raz (1996). Authors’ intentions, however, like all psychological states, are often inchoate, conflicting, or inaccessible to interpreters due to conflicting or inadequate evidence. In such cases, intentionalists resort to counterfactual reasoning, that is, reasoning about the intentions that the author would have had under more optimal conditions than those that actually obtained. What is usually not noted is that counterfactuals are vague, and therefore that the resort to counterfactual intentions brings with it a significant risk of indeterminacy.Some of the ideas in this paper were first developed in STOLJAR (1998).

I. ONCE, SAID AN AUTHOR, WHERE I NEED NOT SAY . . .

Two judges, named Stat J. and Constit J., were asked to appear on a panel at a law conference for jurists from around the world. The two judges were from different jurisdictions, though both their jurisdictions had a common-law legal tradition. Constit’s country, like most, had an American-style written constitution, which, among other things, entrenched and made justiciable a catalogue of individual rights. This document was known as the Charter and Bill of Human Rights (CBHR). Stat’s country, by contrast, was one of the few that had yet to accept the prevailing view of the benefits of American-style constitutionalism. Stat’s country had no entrenched and justiciable CBHR-type document against which judges could weigh, and if necessary strike down, the legislature’s statutes.

Why do we grant religious exemptions? Many distinguished scholars and judges have been drawn to the idea that conscience is entitled to special protection, because a person in its grip cannot obey the law without betraying his deepest, most identity-defining commitments. The weakness of this justification is shown by philosopher Harry Frankfurt's account of what he calls “volitional necessity,” which clarifies the structure of the argument that invocations of conscience imply. Frankfurt shows that a person can be bound in this way by allegiances that there is no reason to respect; volitional necessity can arise from anything at all that a person cares about. Conscience is thus a poor basis for claims upon other people. Accommodation must rather depend on some idea of the value of religion.

Although much legal scholarship discusses the meaning of the religion clauses of the U.S. Constitution, very few articles analyze the ways in which state regulation affects actors' incentives to engage in religious behavior. Yet the question of how a law influences religious behavior is important for determining whether various laws are desirable, and whether they violate constitutional constraints. This article draws on recent economic models of religious organization to analyze the ways in which laws affect the behavior of religious groups. Religious groups produce collective goods for their members, and the effect of laws can be analyzed by examining how they modify the payoffs members receive for cooperating or free riding. The article examines the use of laws to establish religious groups, to subsidize them with cash or tax benefits, to provide accommodations for them, to provide symbolic support for them, to provide secular substitutes for the collective goods they produce, and to regulate disputes between members. The article also briefly discusses the constitutional implications of the analysis.

Numerous legal scholars have adopted the view that H. L. A. Hart offered an expressivist (or at least proto-expressivist) account of legal discourse. But philosophers of law have given comparatively little attention to the prospect of developing newer forms of legal expressivism informed by contemporary metaethics. One notable exception is Kevin Toh, who has recently addressed this constructive project. This article critically evaluates Toh's contributions to the project of legal expressivism. Despite the value of Toh's work in reviving legal expressivism as an explanatory strategy in jurisprudence, neither he nor anyone else has paid sufficient attention to the most important question now facing legal expressivists. I call this the “question of content”: to wit, what distinguishes the mental states expressed by legal statements from the mental states expressed in other forms of normative discourse? I argue that theorists interested in legal expressivism must prioritize this question.

In this paper, I restrict discussion to cases of psychopathy in which it is assumed that psychopaths who satisfy epistemic requirements of responsibility, including the requirement that one is culpable for an action only if one performs it in light of the belief that one is doing wrong, can and do perform actions they take to be immoral or illegal. I argue that in such cases, the well-documented emotional impairment of psychopaths fails to subvert moral culpability. In particular, it does not undermine the sort of control required for moral blameworthiness and, hence, assuming all other conditions of responsibility have been met, the psychopaths of concern are indeed culpable for their behavior. Drawing, however, from certain lessons regarding the effects of coercion on responsibility, I propose that emotional impairment is a factor that should abate, perhaps even significantly, negative reaction to or treatment of such agents.

No one denies that moral principles figure in legal argument and practice. However, the kind of role morality can or must play in law has been a topic of debate not only between positivists and their critics, but also within the positivist camp. The topic was brought into contemporary prominence by Ronald Dworkin, who in The Model of Rules I made the provocative observation that the legality of norms appears to depend sometimes on their substantive (moral) merits, and not just on their pedigree or social source.Ronald Dworkin, The Model of Rules I, in TAKING RIGHTS SERIOUSLY 14 (1977). The observation was intended by Dworkin as a challenge to the positivism of H.L.A. Hart.

Let me begin by admitting that I am wary of any comprehensive definition of consent. This bias stems from my professional concentration on criminal law, in which nouons of freedom and responsibility play vital roles in a wide range of contexts. In each context, however, one discovers that freedom means something different. A voluntary act is any bodily movement not caused by external force or nervous disorder. On the other hand, a voluntary act, however horrific its results, ordinarily may be punished only if the actor was subjectively aware that the act was wrong. In any event, a voluntary act may be excused as the product of duress if another person procures the actor's cooperation in the crime by an illegal threat that would overcome the resistance of a person of ordinary firmness.

Islamic building codes require mosques to face Mecca. The further Islam spreads, the more apt are believers to fall into a quandary. X faces Y only when the front of X is closer to Y than any other side of X. So the front of the mosque should be oriented along a shortest path to Mecca. Which way is that? Does the path to Mecca tunnel through the earth? Or does the path follow the surface of the earth?

Twenty years ago, when feminism was younger and greener, crides who thought the movement was sinking into a quagmire of unscientific irrationality had a relatively easy time in making out their case. In the first place, many feminists were themselves claiming to have rejected both science and reason, along with morality and all other such male devices for the oppression of women. And, furthermore, this position was a relatively easy one for the skeptical outsider to attack. Unless feminists could say such things as that the present treatment of women was morally wrong, or prevailing ideas about their nature false or unfounded, or traditional reasoning about their position confused or fallacious, it was difficult to see on what basis they could rest the feminist case. And, of course, as they did say such things, all the time, it was obvious that any systematic attempt to reject ethics and rationality was systematically undercut by feminists' own arguments.

This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons. By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance. The intentional dimension of fiduciary loyalty is best described by what we call the “shaping” account. This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty. Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations. “Contractarianism” configures fiduciary obligations as a species of contractual duties. The view that we call “proscriptivism” reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries. Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty.

In this article, I shall first try to examine the ways in which rights may conflict (or at least seem to conflict). This will be a sketchy survey at best, but I believe it may be helpful. I shall also consider how the resolution of the conflicts is not solely a function of the weight of the interest (as ordinarily understood) involved and consider what this suggests about the correct theory of rights. Finally, I will discuss how we might measure the relative strength of rights.When an attacker who threatens to cut off someone’s leg is killed by his potential victim in self-defense, it is sometimes said that there is a conflict between the right of the attacker not to be killed and the right of a person not to be harmed. However, this is a pseudo-conflict of rights, since the attacker’s right not to be killed is in some way weakened by his being a threat, at least for the purpose of eliminating the threat he presents. Considered alone and not weakened, how would we rank the rights involved in this case? How does the right not to have one’s leg be cut off compare with the right not to be killed? If I heard of two people, one of whom was threatened with violation of the first right and one who was threatened with violation of the second, I would think it right to help the second. This is some indication that I believe the second right is stronger. But this need not determine how we resolve all problems involving such rights, since in some cases the right may be weakened. For example, we may help the person attacked in the case I described rather than the attacker. Henceforth, I shall try to consider conflicts among unweakened rights. In this article, I draw on past work of mine in which I go into much greater detail about how conflicts to get scarce resources should be resolved and when it is permissible to harm some to save others. These more detailed discussions can be found in 1 MORALITY, MORTALITY, DEATHAND WHOMTO SAVEFROM IT and 2 MORALITY, MORTALITY, RIGHTS, DUTIES, AND STATUS (Oxford University Press 1993 and 1996); and in Toward the Essence of Nonconsequentialism, inFACT AND VALUE: ESSAYS ON ETHICS AND METAPHYSICS FOR JUDITH JARVIS THOMSON (A. Byrne et al., eds., M.I.T. Press 2001).

This article considers the role of conceptual analysis in jurisprudence. In responding to the earlier article of Brian Bix, Conceptual Questions and Jurisprudence, 1 LegalTheory 465 (1995), it is agreed that the purpose of the theorist must be identified in order to evaluate the merits of the practice of conceptual analysis, but the approach taken here differs from that proposed by Bix. In particular, it is suggested that Bix is wrong to limit stipulation within conceptual analysis to a default option, and Bix's suggestion that jurisprudential analysis lacks an empirical basis is challenged. The approach developed in this article relies on a clarification of the relationships among terms, concepts, and fields of enquiry. It explores the different relationships that can exist between concepts. Seven general principles of the practice of conceptual analysis are expounded, and the proper scope of an evaluative element within conceptual analysis is considered. A final section briefly examines some of the wider implications of the approach to conceptual analysis proposed in the article.

I. INTRODUCTION

Do we have constitutional rights that certain states of affairs exist (for example, that I burn an American flag and am not punished); or do we instead have constitutional rights that certain rules not exist (for example, that there be no rule forbidding the burning of American flags on pain of punishment)? I believe that as a positive account of at least most of our constitutional law, our constitutional rights are best conceived as rights against rules. However, the question remains, Why should the Constitution concern itself with rules rather than with states of affairs, with rule-differentiated act-types rather than rule-independent act-tokens? Must not its concern for the former be based on its concern for the latter?

By building upon Raz's analysis of the spectrum of voluntary obligations, the author produces a typology of agreements, and then assesses the extent to which these different kinds of agreements underpin the common law of contract. While recognizing that the law of contract purports to deal with a broad range of voluntarily undertaken obligations, the typology of agreements suggests that the present law is primarily suited to dealing only with bargains. This suggests that there are situations in which agreements should be legally recognized, but which should not be dealt with by all of the conceptual tools of contract law, for these agreements and voluntary undertakings serve the interests of those undertaking them in significantly different ways than do bargains.

The doctrine of promissory fraud holds that a contractual promise implicitly represents an intent to perform. A promisor's conditional intent to perform poses a problem for that doctrine. It is clear that some undisclosed conditions on the promisor's intent should result in liability for promissory fraud. Yet no promisor intends to perform come what may, so there is a sense in which all promisors conditionally intend to perform.

Building on Michael Bratman's planning theory of intentions, this article provides a theoretical account of the distinction between “foreground” and “background” conditions on intentions in general and then explains why foreground conditions on a promisor's intent to perform are likely to result in material promissory misrepresentation, while background conditions are not. The difference between foreground and background conditions lies in whether the agent accepts the satisfaction of the condition for the purposes of her practical reasoning. A promisor's nonacceptance of a condition on her intent to perform is material because it is likely to affect her preperformance deliberations and investment in the transaction, as well as her willingness to seek agreement with the promisee on how to fill contractual gaps.