There is an emerging consensus among political philosophers that state legitimacy involves something more than—or perhaps other than—political obligation. Yet the principle of fair play, which many take to be a promising basis for political obligation, has been largely absent from discussions of the revised conception of legitimacy. This paper shows how the principle of fair play can generate legitimate political authority by drawing on a neglected feature of the principle—its stipulation that members of a cooperative scheme must reciprocate specifically by submitting to the scheme's rules.

In this article, I examine several distinctions that may be relevant to the morality (and conceptual characterization) of terrorism: (1) the state/nonstate agent distinction, (2) the combatant/noncombatant distinction, (3) the intention/foresight distinction, (4) the means/side-effect distinction, (5) the interrelated necessary/nonnecessary means and produce/sustain distinctions, (6) the mechanical/nonmechanical use distinction, (7) the military/political distinction, (8) the harm/terror distinction, and (9) the harm-for-terror/terror-for-goal distinction. I conclude that some of these factors (though not those most commonly cited) account for the prima facie wrongness of terrorism and that the nondistinctive properties of terrorism (which it shares with some nonterrorist acts) are what make it most seriously wrong. I also provide a conceptual examination of terrorism as we commonly think of it and its relation to torture. In the course of discussing the distinctions and also in concluding the article, I consider why terrorism may sometimes be morally permissible.

In this article I criticize a theory of political obligation recently put forward by Christopher Wellman. Wellman's “samaritan theory” grounds both state legitimacy and political obligation in a natural duty to help people in need when this can be done without unreasonable cost. I argue that this view is not able to account for some important features of the relation between state and citizens that Wellman himself seems to value. My conclusion is that the samaritan theory can be accepted only if we are ready to give up either the traditional notion of political obligation as a prima facie duty valid for every citizen or the current view of the relationships that should exist between states, citizens, and foreigners (the view according to which states should have special concerns for their own citizens).

Proposing and consenting to sex are things that ordinary people manage to do all the time, yet legal regulation of sex seems to be an intractable problem. No one is satisfied with rape law, but no one knows quite what to do about it.

Michael Pardo recently intriguingly argues that “the goal or aim of legal proof is knowledge (or something approximating knowledge) rather than less epistemically demanding goals.” Pardo continues, “[L]egal verdicts require more than truth and justification. . .. [T]ruth and justification also need to be connected in an appropriate way.” I do not want to contest (directly) this central claim of Pardo's. My aim here is principally to show some difficulties for the account of (legal) knowledge with which Pardo evidently operates, on which safety is a necessary condition. Highlighting these difficulties, however, puts pressure on Pardo's central claim.

Philosophers have been attracted by the theory that an agreement consists of undertakings by the parties. But the theory faces objections from three sides: unconditional undertakings by both parties are insufficient for an agreement; if the parties give interconditional undertakings, both comply if neither does anything; and, if one party gives an unconditional undertaking and the other a conditional one, a condition of interdependence is breached. The options are to live with the breach, to produce an undertaking-based theory that avoids the objections, or to analyze an agreement otherwise than in terms of undertakings. I consider each option and advocate the third: a better theory is that two people have an agreement where one makes an offer to the other that the other accepts.

What is it to obey the law? What is it to disobey? Philosophers have paid little attention to these questions. Yet the concepts of obedience and disobedience have long grounded many perennial debates in moral, legal, and political philosophy. In this essay, I develop systematic accounts of each concept. The Standard View of obedience—that to obey the law is to act for a certain sort of reason provided by the law—has long been taken for granted. I argue against this and other views of obedience, and develop an account of the knowledge and intention required in acts of obedience. I then develop a symmetrical account of the disobedience involved in acts of civil disobedience. The purpose of the essay is to develop a more systematic understanding of these concepts, in order to identify more precisely what is at stake in debates of political obligation, civil disobedience, and the authority of law.

Two methodological claims in Hart's The Concept of Law have produced perplexity: that it is a book on “analytic jurisprudence”H.L.A Hart, THE CONCEPT OF LAW (1994). and that it may also be regarded as an essay in “descriptive sociology.”Id. Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time.

Review of Foundations of Evidence Law, by Alex Stein (Oxford University Press, 2005)

It has often and correctly been remarked that the Hart-Fuller debate of 1956–1969 set the agenda for Anglo-American jurisprudence in the last half of the twentieth century. The nature of law, of legal obligation, of legal authority, and of law's relation to morality were the questions that debate made central to jurisprudence as we have since practiced it.

In his recent book Interpretation and Legal Theory, Andrei Marmor makes a number of claims about meaning and interpretation, both in general and in law, which I will argue are mistaken. Actually, there is some confusion in his book between what I take to be his “official” view of the nature of meaning and interpretation, and a very different view which keeps surfacing despite his official rejection of it. I will argue that this alternative, rejected view, when properly developed, is more plausible than his official view, and that the difference between them is of considerable practical consequence for legal interpretation. What is at stake is the role of legislative intention. The alternative view denies Marmor's claim that the meaning of a statute is conceptually independent of the intention or purpose which the legislature had in enacting it. It should be said at the outset that I will focus on just three of the eight chapters in Marmor's book, which contains many virtues that are untouched by my critique.

Reasons appear to fall into well-recognized types: pro tanto or decisive, moral or nonmoral, and so on. Nowadays, it is widely held that reasons can also be “content-independent.” This paper is directed against this belief.

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is—as the corrective-justice theorists rightly insist—a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency.

This paper hypothesizes that the paradox Hart confesses to in Ch. X of Essays on Bentham was the result of metaethical ambivalence. Hart eclectically yokes together metaethically incompatible elements from two disparate models of “normativity of law” with different sources of normativity: the impinging model based on a cognitivist metaethic and the projectivist model based on a noncognitivist metaethic. The “sources” of normativity in the two models are different. On the impinging model the source of normativity is a reason-giving objective moral requirement, and on the projectivist model, the source of normativity is a motivationally affective conative attitude. The metaethical configuration of the rule of recognition in Essays on Bentham constrained Hart to postulate a “source” of normativity metaethically congruous with the impinging model. However, the “source” of normativity Hart seemed keen to advance—he makes an “attitude” the source of normativity—was only congruous with the projectivist model.

In Chapter 4 of his famous work, Harm to Others, Joel Feinberg, with characteristic clarity and insight, outlined the major problems associated with analyzing the foundations of responsibility for the failure to act. In that chapter he made a number of controversial claims supported by arguments that have generated debate ever since he made them in 1984. His analysis led him to conclude that liability (or responsibility) for the failure to act falls within the moral limits of the criminal law in cases in which a random bystander could easily rescue a seriously imperiled stranger.

This article discusses the place of integrity in Ronald Dworkin's legal and political philosophy. It presents integrity as a response to certain problems that arise in any society in which more than one contestant view about justice is allowed to determine public policy and legal principle. It also analyzes the relation between integrity and justice, arguing that although integrity requires citizens and officials sometimes to uphold policies or positions they take to be unjust, Dworkin is nevertheless wrong to present them as competing political virtues. Instead, integrity operates as a second-level concept, addressing situations that arise in a society where there is disagreement about justice (and where, therefore, there is no uncontroversial account of what justice requires to set against the requirements of integrity). The article concludes with some reflections on the role of individual convictions about justice in context of law and social action.

This article develops and advances a liberal ideal of equality for evaluating the lawful scope of employer control over employees. It argues that, in addition to attending to discrimination and bargaining power asymmetries, we should ensure that our laws treat workers as the moral equals of their bosses more broadly—as people with equally weighty claims to exercising agency over their own values and lives. To illustrate, the article explains that employer control over workplace expression can preclude colleagues from communicating with each other as moral equals and can compromise employees’ abilities to exercise agency over their own characters. It then discusses how our agential interests in workplace expression can guide legal reform.

This paper is about the remedy of disgorgement for breach of contract. In it I argue for two conclusions. I first argue that, prima facie at least, disgorgement damages for breach of contract present something of a puzzle. But second, I argue that if we pay close attention to the notion of contractual performance, this puzzle can be resolved in a way that is consistent with principles of corrective justice. In particular, I suggest that even if a contract gives the promisee a right to only the promisor's performance of the contract, such a right can sometimes entail the acquisition by the promisee of certain rights of ownership. And in situations in which such rights are acquired, the disappointed promisee is entitled to the gains realized by the promisor in breach of contract by reason of the fact that such gains are something to which the promisee has an antecedent right.

This paper argues that neither a general right to exclude migrants nor a general right to migrate freely exists. The extent of the right to exclude or the right to migrate freely must instead, in the majority of cases, be determined indirectly by examining whether a given immigration law or policy would result in the violation of migrants’ basic rights. Therefore states’ right to exclude migrants is constrained by what the author calls the indirect principle of freedom of migration. Under this principle, if an immigration law or policy cannot be imposed without violating a migrant's basic rights, then the law or policy cannot be legitimately implemented. The argument for this principle is undertaken both conceptually and substantively. It is then defended against the objections that on the one hand, it may not have enough critical force, and on the other, it may be overly restrictive of states’ power to exclude migrants.