Despite the fundamentally binary character of justification (an act is either right or not, permissible or impermissible), an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find, however, that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the conduct-guiding function of criminal law and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meets this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness; indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defense.

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 offers a new framework for thinking about the relationship between the common law of property and the rule of law. The standard way of framing this relationship is within the terms of the form/substance debate within the literature on the rule of law: Does the rule of law include only formal and procedural aspects or does it also encompass and support substantive rights such as private property rights and civil liberties? By focusing on the nature of common-law reasoning, I wish to question the form/substance dichotomy that frames this debate and to show that the formal aspects of the rule of law are in fact principles widely adopted within the practice of common-law reasoning and as such play a large role in shaping the substantive content of common-law property rights. Understanding this has implications beyond the relationship between property law and the rule of law.

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.

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.

Christopher Wellman is the strongest proponent of the natural-duty theory of political obligations and argues that his version of the theory can satisfy the key requirement of “particularity”; namely, justifying to members of a state the system of political obligations they share in. Critics argue that natural-duty theories like Wellman's actually require well-ordered states and/or their members to dedicate resources to providing the goods associated with political order to needy outsiders. The implication is that natural-duty approaches weaken the particularity requirement and cannot justify to citizens the systems of political obligation they share in. I argue that the critics’ diagnosis of natural-duty approaches is correct, whereas the proposed implication is false. I maintain that 1) only natural-duty approaches can justify political obligations, and that 2) weakening the particularity requirement contributes to the theory's ability to justify a range-limited system of political obligations among compatriots.

In this essay, I argue that absent special circumstances, there are no moral, judicial procedural rights. I divide this essay into four main sections. First, I argue that there is no general moral right against double jeopardy. Next, I explain why punishing a criminal without first establishing her guilt via a fair trial does not necessarily violate her rights. In the third section, I respond to a number of possible objections. And finally, I consider the implications of my arguments for the human right to due process.

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 paper I argue that economic theories have never been able to provide a coherent explanation of the causation requirement in tort law. The economic characterization of this requirement faces insurmountable difficulties, because discourse on tort liability cannot be reduced to a cost-benefit analysis without a loss of meaning. More seriously, I try to show that by describing causation in economic terms, economic theories offer an image of the practice in which the participants incur in logical contradictions and develop patterns of inference that are far from intuitive. For this reason, efficiency cannot be the fundamental principle underlying tort law. Finally, I suggest that economic analysis of law can provide a genuine explanation of certain aspects of legal practice if it relinquishes its reductionist claims.

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.

Proponents of strict rule-based theories of judicial reasoning in common-law systems have offered a number of criticisms of analogical alternatives. I explain these criticisms and show that at best they apply equally well to rule-based theories. Further, I show how the analogical theories explain a feature of judicial common-law reasoning—the practice of distinguishing cases—that rule-based theories ignore. Finally, I show that reason-based, analogical theories of common-law judicial reasoning, such as those offered by John Horty and Grant Lamond, offer especially strong rejoinders to the rule-theorist objections and persuasive accounts of distinguishing.