How do legal texts determine legal content? A standard answer to this question—sometimes called “the standard picture”—is that legal texts communicate something and what they communicate is identical to legal content. Mark Greenberg criticizes the standard picture and offers in its place his own “moral impact theory.” My goal here is to respond to Greenberg by showing how the standard picture better explains legal practice than the moral impact theory does. To that end, I first clarify certain aspects of the moral impact theory. I then critique the theory, focusing on its inability to explain (i) why practitioners reason about legal content as they do and (ii) why they agree on legal content as often as they do. Finally, I refine the standard picture and demonstrate how it explains what the moral impact theory cannot.

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.

I. INTRODUCTION: LEGAL RIGHTS AND MORAL RIGHTS

Having outlined two different ways of articulating the tort of negligence, John Gardner explains that: “the way we render the ingredients of the tort matters for the defensibility of the regime of liability that it brings in its wake. The reason is that to defend the incidence of the liability one must first defend the assertion of the duty.” And defending the assertion of the duty—given that the law “stands or falls in its own moral legitimacy depending on whether it has the very moral authority that it claims”—involves the following:

The last year has seen major changes at Legal Theory. Two of the journals’ editors—David Brink (Professor of Philosophy, University of California, San Diego) and Matthew Adler (Professor of Law, Duke Law School)—stepped down after years of outstanding editorial work. We gratefully acknowledge their invaluable contributions in sustaining and improving the journal. As each editor stepped down, a new editor stepped in. Connie Rosati (Professor of Philosophy, University of Arizona) began work as an editor in the fall of 2016. In the spring of 2017, Mitchell Berman (Professor of Law, University of Pennsylvania Law School) joined the journal.

Retributive restrictions are principles of justice according to which what a criminal deserves on account of his individual conduct and character restricts how states are morally permitted to treat him. The main arguments offered in defense of retributive restrictions involve thought experiments in which the state punishes the innocent, a practice known as telishment. In order to derive retributive restrictions from the wrongness of telishment, one must engage in moral argument from generalization. I show how generalization arguments of the same form can be used subversively to derive morally unacceptable conclusions from other scenarios in which the state intentionally inflicts undeserved coercion. For example, our considered moral convictions approve of punishment policies that inflict collateral damage, such as the ubiquitous policy of excluding the family members of inmates from prison facilities outside visiting hours. I present a generalization argument for the conclusion that these policies are seriously unjust. If we firmly believe that these policies are not unjust, then we should put less stock in generalization arguments. We should not use them to support retributive restrictions. This conclusion has broad implications for the theory and practice of criminal justice.

Authority is a normative power to create duties in others. The most plausible accounts of this general power relate it to existing reasons the subjects of authority have with which authoritative directives can help them comply. Such accounts lead some theorists to ascribe a morally ambitious function to political institutions. This article argues against such theories. It defends political authority as a modest normative power, constrained by the type of reasons with which it can help its subjects comply. This modest account differs from other liberal views in the limits it imposes on the exercise of political authority. It casts doubt on familiar limits that protect an individual private sphere. Instead, it imposes a condition of moderation. It suggests that legitimate exercises of political authority should leave space for individuals to be motivated by reasons that political institutions do not and should not mediate for them.

I offer in this paper an argument in support of the orthodox view that resultant luck should not affect judgments of blameworthiness—and so, for example, that we should not blame the successful assassin more than the attempted assassin who equally tries but fails. This view, though widely held among moral philosophers and legal scholars, has been severely challenged as implying either the implausible rejection of moral luck or an equally implausible theory of wrongness according to which actual consequences may play no wrong-making role. The argument I offer, however, assumes both challenges to be true and shows that the orthodox view is consistent with holding them. Indeed, I argue that all other things being equal, successful offenders are no more to blame than their unsuccessful counterparts, even though agents are responsible for what they actually do (and therefore are subject to moral luck), and successful offenders do more wrong than their unsuccessful counterparts do (and therefore consequences do play a wrong-making role). The reason is that the difference in the amount of wrong done by one and the other offender, I show, is counterbalanced by a difference in the degree to which the successful offense and the unsuccessful one are attributable to their respective agents—blameworthiness being a function of both amount of wrong done and degree of attributability.

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Among the most popular strategies for justifying political obligations are those that appeal to the principle of fairness. These theories face the challenge, canonically articulated by Robert Nozick, of explaining how it is that persons are obligated to schemes when they receive goods that they do not ask for but cannot reject. John Simmons offers one defense of the principle of fairness, arguing that people could be bound by obligations of fairness if they voluntarily accept goods produced by a cooperative scheme. Simmons, however, thinks that such a theory will do little work in justifying political obligations, since virtually no one voluntarily accepts state goods. This paper attempts to advance just such a theory by arguing that states are in fact genuine cooperative schemes and that Simmons is overly pessimistic in his appraisal of whether the majority of citizens accept the goods provided by their states.

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written;See generally Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998). they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible;See generally Mark Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41 (1995); John Copeland Nagle, Severability, 72 N.C. L. REV. 203 (1993); Robert Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 82–106 (1937). and they interpret statutes in ways that avoid constitutional difficulty.See generally Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997). These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. Several commentators have equated the practices mentioned in the text to judicial revision of statutes. See Dorf, supra note 1, at 292–93 (severance results in a “judicially rewritten law”); Nagle, supra note 2, at 220 (the product of severance is “akin to a new statute”); Schauer, supra note 3, at 80–81 (narrowing construction is a form of “redrafting”).

Looked at from the perspective of an American constitutionalist, individual rights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority,See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY 184–205 (1977). the phrase “individual rights” has a meaning that is now relatively well understood. In a different sense, however, the phrase “individual rights” might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity),See, e.g., Wesley Newcomb Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1964); Arthur Corbin, Legal Analysis and Terminology, 29 YALE L.J. 165 (1919); Roscoe Pound, Legal Rights, 26 INT’L J. ETHICS 92 (1916); Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1149 (1938). and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit,See John Chipman Gray, THE NATURE AND SOURCES OF LAW (R. Gray ed., 2d ed. 1921); Oliver Wendell Holmes, THE COMMON LAW (1881); William Twining, KARL LLEWELLYN AND THE REALIST MOVEMENT 381 (1973); Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897). The theme is also prominent in the work of the Scandinavian Realists. See, e.g., Axel Hägerström, INQUIRIES INTO THE NATURE OF LAW AND MORALS (1953); A. Villem Lundstedt, LEGAL THINKING REVISED (1956); Karl Olivecrona, LAW AS FACT (2d ed. 1971); Alf Ross, DIRECTIVES AND NORMS (1968); Alf Ross, ON LAW AND JUSTICE (1958); Karl Olivecrona, Legal Language and Reality, in ESSAYS IN HONOR OF ROSCOE POUND 151 (F. Newman ed., 1962); Alf Ross, Tû-tû, 70 HARV. L. REV. 812 (1957). the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled Rights Against Rules: The Moral Structure of American Constitutional Law<Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules.

After defining Cosmopolitan Right as being limited to the conditions of “hospitality,” Kant includes “Wirtbarkeit” in brackets, a word that connotes innkeeping. Moreover, significant similarities obtain between the relevant passages of the Perpetual Peace and those of the Digest of Justinian on the obligations of ships’ masters, innkeepers, and stable keepers. Unlike for ordinary householders, hospitality for innkeepers is a legal obligation, not a matter of philanthropy: they have traditionally been deemed public officials with limited discretion to refuse travelers, and as fiduciaries of their guests strictly liable for losses to their property. This article attempts to explain Kant's concept of Cosmopolitan Right by analogy to the private law of innkeeping, and ultimately engages in the central philosophical debate about Cosmopolitan Right by accounting for Cosmopolitan Right solely from the “innate” right to freedom, rather than from “acquired” facts such as land or resource distributions or historical injustices.

In this paper I address the issue of the normativity of instrumental rules (for example, legal rules). On the one hand, I criticize Scott Shapiro's “constraint model” of instrumental rule-following according to which instrumental rules have motivational clout qua rules: the agent conforms to them simply because they are rules. On the other, I argue for a purely epistemic account of instrumental rule-following. According to this account, instrumental rules inform the agent which action she is required to perform but do not get her to act. Rather the agent is motivationally guided by the reasons for which she adopted the instrumental rules.

The idea of public reason requires that citizens in their public deliberation employ considerations stemming from a shared conception of justice. One worry is that public reason's content will be incomplete, in that it does not contain sufficient material for adequate public debate. Rawls has a way of expanding the content of public reason to address such concerns—by including in public reason all those things you and I say in our justification of the conception of justice. After arguing that this strategy fails, a new way of expanding public reason's content is proposed. Instead of understanding the Supreme Court—which Rawls famously calls the “exemplar” of public reason—as an institution that appeals to exogenously determined public reasons, we should understand the judicial authority in a liberal democratic society as an endogenous fountain of public reason.

According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.

It is common ground, as between legal positivists and their critics, that the criminal law ought to be codified in such a way that it can be relied on directly by citizens. I shall criticize this “guidance view” of the criminal law, through analyzing the ambitious attempt of Paul Robinson to devise a criminal code wholly shaped by that view. While there are reasons to favor a legislated criminal code over judge-made criminal law, there is no reason to think that such a code must be capable of guiding laypeople directly. Further, there may be reasons to accept limited judicial discretion to reinterpret the scope of the criminal law to meet unanticipated circumstances. Positivists’ preference (inspired by H.L.A Hart) for legislation coupled with limited judicial discretion is not, and should not, be supported by the (wrongly) supposed need to meet the requirements of the “guidance view.”

Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas, which appeal to the reason (the major premise); (2) pornography communicates no ideas and appeals to the passions rather than the reason (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres.

There is a close but largely unexplored connection between law and economics and cognitive psychology. Law and economics applies economic models, modes of analysis, and argument to legal problems. Economic theory can be applied to legal problems for predictive, explanatory, or evaluative purposes. In explaining or assessing human action, economic theory presupposes a largely unarticulated account of rational, intentional action. Philosophers typically analyze intentional action in terms of desires and beliefs. I intend to perform some action because I believe that it will (is likely to) produce an outcome that I desire. This standard “belief-desire” model of action invokes what philosophers of psychology and action theorists aptly refer to as a “folk psychology.”

In Legality Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a rule of recognition through which officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the rule of recognition are confused and that his model of law—though commendably more sophisticated than any model propounded by earlier legal positivists—is consequently untenable. Shapiro contends that a new approach is vital for progress in the philosophy of law and, with his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant planning theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the planning theory.

This article explores four topics raised by Eyal Zamir and Barak Medina's treatment of constrained deontology. First, it examines whether mathematical threshold functions are the proper way to think about limits on deontology, given the discontinuities of our moral judgments and the desired phenomenology of rule-following. Second, it asks whether constrained deontology is appropriate for public as well as private decision-making, taking issue with the book's conclusion that deontological options are inapplicable to public decision-making, whereas deontological constraints are applicable. Third, it examines the issue of the relationship between deontology and efficiency, asking whether deontological constraints should yield in situations where everyone would expect to benefit from their suspension, either ex ante or ex post. Finally, the article concludes that constrained deontology is susceptible to political abuse because of the many degrees of freedom involved in identifying constrained actions and the point at which those constraints yield to consequentialist benefits.