Poetry is about the grief; politics is about the grievance.

—Robert Frost

The ruling passion in man is … a gregarious instinct to keep together by minding each others' business.

—Robert Frost

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.

This essay develops a liberal account of the mens rea requirement of criminal liability and identifies the fault level required by that account. By “a liberal account” is meant one that interprets the meaning of mens rea in a way that reconciles liability to coercion with the individual's inviolability. The article argues that the wrongdoer's choice to interfere or to risk interfering with another agent's capacity to act on his own ends is the level of fault required to make punishment implicitly self-imposed by the recipient and thus distinguishable from the wrongdoer's violence. Such a choice is one to which a denial of rights of agency may be logically imputed, a denial by which the wrongdoer implicitly authorizes his own coercibility. This version of subjectivism is, I argue, invulnerable against criticisms leveled against other versions. While staking out defensible subjectivist ground, the article criticizes the character, choice, and opportunity theories of mens rea proposed by Fletcher, Moore, and Hart, and elaborates the interpretations of exculpatory conditions flowing from the subjectivist thesis. Finally, it addresses arguments advanced by Ripstein, Duff, and Horder for eliminating the requirement of a conscious choice to do that which amounts to a denial of rights.

In this essay I elaborate a particular, and particularly important, morality: the morality of human rights. Next, I ask the ground-of-normativity question (as I call it) about the morality of human rights and go on to elaborate a religious response. Then, after explaining why one might be skeptical that there is a plausible secular response to the ground-of-normativity question (i.e., to the question asked about the morality of human rights), I comment critically on John Finnis's secular response. Finally, I consider what difference it makes if there is no plausible secular response to the ground-of-normativity question.

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.”

In this article I want to support a certain conception of legal authority. The question I want to address is this: Is it possible to attribute legal authority to a given norm if its authority does not derive from the authority of someone who has issued that norm? Basically, I will try to defend here a negative answer to this question, espousing a personal conception of authority.

To whom is a duty owed? Contractualism answers with an interest theory of direction. As such, it faces three challenges. The Conceptual Challenge requires acknowledgment that a duty is conceptually distinct from an interest. The Extensional Challenge requires an account of cases in which one who is owed a duty does not take an interest in the duty, or does not take as much of an interest as someone who is not owed the duty. The Positivist Challenge requires explanation of the great flexibility of law and other social practices in positing duties that do not reflect the landscape of moral interests. Contractualism can be shown to meet these challenges once we acknowledge the centrality of the idea of a generic interest. Focusing on generic interests also illuminates the distinctive form of respect involved in directedness.

I. INTRODUCTION

Having developed his own complex and subtle theory of vagueness, Stephen Schiffer, in “A Little Help from Your Friends?” asks if philosophical theories of vagueness have anything to offer to jurisprudential concerns about vagueness. His answer is “no.”

Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.

The obligation of a court to follow the law of a superior court is commonly taken to be stronger than the obligation of the higher court to respect its own precedent. The Supreme Court has recently asserted this stronger obligation in the most forceful terms. What follows is an attempt to demonstrate that this is wrong as a matter of policy and as a matter of law.

According to interest theorists of rights, rights function to protect the right-holder's interests. True. But this leaves a lot unsaid. Most saliently here, it is certainly not the case that every agent who stands to benefit from performance of a duty gets to be a right-holder. For a theory to allow this to be the case—to allow for an explosion of right-holders—would be tantamount to a reductio thereof. So the challenge for interest theorists is to respect the core of the interest theory while delimiting the set of right-holders in a principled manner. The foremost explicit attempt to do this has invoked Bentham's test. Predictably, invocation of this test has come under attack, with the ultimate aim of challenging the interest theory itself. My purpose in this paper is to render Bentham's test as clearly and accurately as possible. Doing so will raise issues of modality—ultimately in rendering Bentham's test's logical form. Ultimately a core attack on Bentham's test falls away, and, to that extent, the interest theory remains standing as a promising theory of rights.

In two recent papers, Mark McBride has attacked the interest theory of rights, both introducing new arguments and claiming that interest theorists have not successfully deflected Gopal Sreenivasan's earlier arguments. This essay replies to all of McBride's criticisms, showing them to be mistaken.

In his interesting comment on my recent article, “The Appeals Process as a Means of Error Correction,” Edward Schwartz makes two criticisms of my analysis. The criticisms have essentially to do with my assumption that an appeals court judge will base his or her decisions only on what happened at trial, and not on any inference that can be drawn from the fact that an appeal was brought. Before explaining why I do not find Schwartz's criticisms problematic, it will be helpful for me to restate the main features of the model that I examined in the article.

Is the act/omission distinction relevant to assessments of responsibility, and if so, why? The traditional view is that the distinction is relevant in that ceteris paribus acts are more blameworthy than omissions. Until about the 1960s that position tended to be assumed rather than justified, but since then there has been considerable debate over the issue. Some philosophers have challenged the validity of the moral position upon which the distinction rests, and some have questioned its conceptual grounding.See, e.g., J. Bennett, Whatever the Consequences Analysis, 26 (1966); P. Unger, LIVING HIGHAND LETTING DIE (1996) on the moral relevance of the AOD. See, e.g., J. Bennett, THE ACT ITSELF (1995); B. Vermazen, Negative Acts, in ESSAYS ON DAVIDSON: ACTIONSAND EVENTS 95 (Vermazen and Hintikka, eds., 1985) on the concept of omission. But others have come to its defense.See, e.g., A.M. Honore, Are Omissions Less Culpable? in ESSAYS FOR PATRICK ATIYAH 31 (Cane and Stapleton, eds., 1991); M. Moore, ACTAND CRIME 23 (1993). So the question remains. Exactly what (if anything) does the act/omission distinction (henceforth AOD) tell us about responsibility in general or legal responsibility?

I aspire to answer two questions regarding the concept of a corrective duty. The first concerns what it means to wrong others, thus triggering a demand for corrections (the ground question). The second relates to the proper content of corrective duties. I first illustrate how three prominent accounts of corrective duties—the Aristotelian model of correlativity, the Kantian idea that wronging corresponds to the violation of others’ right to freedom, and the more recent continuity view—have failed to answer the two questions satisfactorily. I then introduce my proposal, which holds that we wrong others when we fail to treat their status as moral agents as a source of stringent constraints on our action. I call it the moral neglect account. Once we have identified a common aim of corrective duties (counterbalancing moral neglect), we can fill their content in the various contexts in which wronging has occurred. I conclude by observing that it is not the primary role of corrective justice to assign responsibilities for damage reparations; in fact, requests for compensation make more sense if framed in distributive rather than corrective terms.

Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned (but not fully explained) by Hart in which power-holders may be legally disabled. Legal invalidation (nullification) of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation (noncognizance) of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort of control, less restrictive than completely invalidating them but more restrictive than just not validating them, that is, just ignoring them. Illustrative examples include the European Court of Justice's early use of invalidation to convert an international treaty into a supranational constitution, and the subtle effects of legal nonvalidation of same-sex marriage.

In 1966 the U.S. Supreme Court wrote, “The basic purpose of a trial is the determination of truth.” This is Larry Laudan's guiding premise in his “essay on legal epistemology.” Without ascertaining the facts about a crime, he writes, it is impossible to achieve justice, since a just resolution crucially depends on correctly figuring out who did what to whom. Thus, he continues, “it is entirely fitting to ask whether the procedures and rules that govern a trial are genuinely truth-conducive.” In chapter 1 of the book, Laudan identifies one of the most important and legitimate methods for finding truth, namely, ensuring that the jury hears all and only relevant evidence. Laudan bemoans the fact, however, that “legal texts and the practices of courts routinely flout” this principle. Much of the rest of the book is devoted to the other tests for admissibility that the system imposes, tests that Laudan often regards as misguided.

Patricia Smith provides an analysis of the concept of omission that builds upon the work of Joel Feinberg. Her account succeeds in bringing together more systematically than did Feinberg several key elements of his analysis. She also usefully extends the analysis to include unintentional omissions. Nonetheless, I argue that she mistakenly presupposes that there is a unique and logically fundamental concept of omission. Rather, I contend, there are multiple omission concepts, each mapping the conceptual terrain of inaction in a somewhat different way. These different concepts, each useful for a distinct purpose, will emerge from an examination of the flaws that Smith's account shares with Feinberg's analysis.

In the posthumously published Postscript to The Concept of Law, H.L.A. Hart claimed that the account he advanced in that book was meant to be “both general and descriptive.”H.L.A. Hart, THE CONCEPTOF LAW 239 (2nd ed. with Postscript; Penelope A. Bulloch and Joseph Raz, eds., 1994). Hereinafter “Hart.” The meaning, possibility, and desirability of such an account of legal institutions form the subject of much recent interpretative and critical debate.See, e.g., Stephen Guest, Two Strands in Hart’s Concept of Law: A Comment on the Postscript to Hart’s The Concept of Law, in POSITIVISM TODAY 29-44 (Stephen Guest, ed., 1996); Michael Moore, Hart’s Concluding Scientific Postscript, 4 LEGAL THEORY 301-327 (1998); Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249–282 (1998). Prominent among the disputants is Professor Stephen Perry, who, in several recent articles, offers both an interpretation of Hart’s distinctive methodological aims and a critical argument that counsels their rejection.Stephen Perry, Hart’s Methodological Positivism, 4 LEGAL THEORY 427–467 (1998) (hereinafter “HMP”); The Varieties of Legal Positivism, 9 CAN. J. L. & JURIS. 361–381 (1996) (hereinafter “VLP”); Interpretation and Methodology in Legal Theory, in LAWAND INTERPRETATION: ESSAYSIN LEGAL PHILOSOPHY 97, 118 (Andrei Marmor ed., 1995) (hereinafter “IMLT”). Perry’s interpretation is worth examining, not only for his claims about Hart, but also for his more general claims and assumptions about what a descriptive theory of law would be expected to look like and what it could hope to accomplish.