Debates about our moral relation to the law typically focus on the moral force of law. Often, the question asked is: Do we have a moral duty to follow the law? Recently, that question has been given a virtue-ethical formulation: Is there a virtue in abiding by the law? This paper considers our moral relation to the law in terms of virtue but focuses on a different question from the traditional ones. The question here is: Can the law model virtue in beneficial ways that enable us to cultivate virtue? This paper shows that the law can do this by setting a moral example that we have good reason to emulate. This is significant given the distinctive influence the law has over our lives. The paper begins by examining the nature of a model, comparing different models of virtue, and then questions the possibility of a complete model of virtue such as the so-called Virtuous Person. The paper then articulates several ways in which the law can model virtue for us and responds to three objections: 1) the embodiment problem, 2) the poisoning problem, and 3) the emulation problem.

Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism—arguably best classified as a version of expected-applications originalism—is “confused, implausible, and unworkable.” I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions.

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”

This article explores the nature and role of legal powers in private law. I show how powers are special in that they allow agents to change their (and others’) legal circumstances merely by communicating an intention to do so, without having also to change the nonnormative facts of the world. This feature of powers is, I argue, particularly salient in private law, with its correlative or bipolar normative structure; understanding powers and their role in private law thus requires careful attention to this correlativity. In the final section, I argue that the correct explanation of a variety of substantive problems in private law, many having to do with the role of a party's intention, turns on correctly understanding legal powers.

This article provides a normative appraisal of the law of military occupation by looking into occupation courts and their legitimacy. It focuses on two cornerstones of the current regulation of war: the principle of equality of belligerents, that is, the potential relevance of jus ad bellum considerations on the in bello rights of occupants, and the normative force of the traditional distinction between states and non-state armed groups, specially in conflicts not of an international character. Against the currently predominant neoclassical position in just war theory, it argues in favor of the moral equality of just and unjust occupants. Against the orthodox position in international law, it advocates the symmetrical treatment of states and non-state actors fighting internal armed conflicts, at least in terms of the rights they may claim on the territories under their control. It concludes by appraising the way in which this moral landscape should be translated into legal norms.

In most common-law and civil-law jurisdictions, mistakes of law do not excuse. That is, the fact that one was ignorant of the content or requirements of some law does not excuse violations of that law. Many have argued that this doctrine is mistaken. In particular, many have argued that if an individual's ignorance or false belief is blameless, if she held the false belief reasonably, then she ought to be able to use that ignorance as an excuse for violating the law. It is much harder to find defenders of the doctrine, despite its prevalence. Pragmatic considerations are occasionally offered on its behalf, but these are generally not impressive. In this paper, I consider a more direct kind of justification for the doctrine, one that attempts to identify something more immediately normatively objectionable about being ignorant of the law. In particular, I consider an argument that suggests that legal ignorance is more like moral ignorance than like nonmoral ignorance and maintains that even nonculpable moral ignorance does not excuse.

In Born Free and Equal: A Philosophical Inquiry into the Nature of Discrimination, Kasper Lippert-Rasmussen defends the harm-based account of the wrongness of discrimination, which explains the wrongness of discrimination with reference to the harmfulness of discriminatory acts. Against this view, we offer two objections. The conditions objection states that the harm-based account implausibly fails to recognize that harmless discrimination can be wrong. The explanation objection states that the harm-based account fails adequately to identify all of the wrong-making properties of discriminatory acts. We argue that the structure of a satisfactory view cannot be outcome-focused. A more promising family of views focuses on the deliberation of the discriminator and in particular on the reasons that motivate or fail to motivate her action.

The article uses the recent U.S. Supreme Court decision in the same-sex marriagecase Obergefell v. Hodges as the springboard for a generalenquiry into the nature and existence of a constitutional right to liberty underthe American Constitution. The discussion is divided into two main parts. Thefirst examines the meaning and the justifiability of there being a moral rightto liberty as a matter of political philosophy. Two such rights aredistinguished and defended: first, a right not to be coerced by the state whenthe state is motivated by improper reasons (prominent among which arepaternalistic reasons); and second, a right not to be coerced by the state whenthere are insufficient justifying reasons for the state to do so, irrespectiveof how such state coercion may be motivated. Neither right is regarded as“absolute,” and so it is morally permissible for the stateto override such rights in certain circumstances. The second part of the articleexamines the distinct and additional considerations that must be taken intoaccount when these two moral rights to liberty are fashioned into correspondinglegal rights under American constitutional law. Both such rights survive thetransformation, but each becomes altered somewhat in its content. This legaltransformation includes recognition of the nonabsolute nature of moral rights,such recognition taking the form of some doctrine of “compellingstate interests.” The discussion in these two main parts of thearticle is prefaced with a defense of the article's use of politicalphilosophy to inform constitutional law, a defense motivated by Chief JusticeRobert's denunciation of such an approach to constitutional law inhis opinion in Obergefell.

This essay reviews Frederick Schauer's book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer's criticism on that score is sound. His analysis of the role coercion can play in accomplishing law's moral tasks is also welcome and important. Nevertheless, Schauer's jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of Law’s strong critique of contemporary positivism and the incompleteness of its own method make an indirect case for the classical tradition of theorizing that understands law in light of its moral purposes.