You and I are neighbors, with our houses situated closely together. You lead a group of rock musicians who can practice only in the evenings in your backyard; while I, on the other hand, enjoy nothing more than quiet evenings spent on my porch accompanied by the sounds of frogs and crickets. Presumably, you have a right to pursue your musical career, and I have a right quietly to enjoy my property. If we do indeed have these rights, however, then they seem to conflict with each other, in that your exercising your right is incompatible with my exercising mine.

Modern theorists often use Immanuel Kant's work to defend the normative primacy of human rights and the necessity of institutionally autonomous forms of global governance. However, properly understood, his law of nations describes a loose and noncoercive confederation of republican states. In this way, Kant steers a course between earlier natural lawyers such as Grotius, who defended just-war theory, and visions of a global unitary or federal state. This substantively mundane claim should not obscure a more profound contribution to the science of international law. Kant demonstrates that his concept of law forms part of a logical framework by which to ascertain the necessary institutional characteristics of the international legal order. Specifically, his view is that the international legal order can only take a noncoercive confederated form as its subjects become republican states and that in these circumstances law can exist without a global state. Put another way, Kant argues that if we get state-building right, the law of nations follows.

Rational expectations models have become a staple of economic theory and the basis for a Nobel Prize. This article argues that rational expectations analysis suffers from potentially fatal flaws that seriously undermine its value in understanding many market phenomena. Using the example of financial markets, the article illustrates how the rational expectations approach has worked to obscure, rather than to illuminate, our understanding of speculation and speculative markets. This misguidance raises problems for law and policy.

The doctrine of promissory fraud holds that a contractual promise implicitly represents an intent to perform. A promisor's conditional intent to perform poses a problem for that doctrine. It is clear that some undisclosed conditions on the promisor's intent should result in liability for promissory fraud. Yet no promisor intends to perform come what may, so there is a sense in which all promisors conditionally intend to perform.

Building on Michael Bratman's planning theory of intentions, this article provides a theoretical account of the distinction between “foreground” and “background” conditions on intentions in general and then explains why foreground conditions on a promisor's intent to perform are likely to result in material promissory misrepresentation, while background conditions are not. The difference between foreground and background conditions lies in whether the agent accepts the satisfaction of the condition for the purposes of her practical reasoning. A promisor's nonacceptance of a condition on her intent to perform is material because it is likely to affect her preperformance deliberations and investment in the transaction, as well as her willingness to seek agreement with the promisee on how to fill contractual gaps.

This essay concerns Scott Shapiro's criticism that H.L.A. Hart's theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro's criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro's planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro's criticism of Hart, as it stands, is incomplete. Careful attention to Hart's notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon.

This paper seeks to elucidate the role played by the common good in John Finnis's arguments for a generic and presumptive moral obligation to obey the law.1 Finnis's appeal to the common good constitutes a direct challenge to liberal and philosophical anarchist denials of a generic and presumptive obligation to obey the law.2 It is questionable, however, whether Finnis has presented the strongest possible case for his position. In the first section I outline Finnis's account of the relationship between basic goods, the common good, and the authority of law. Section II demonstrates how Finnis's emphasis upon the instrumental nature of the common good leaves his position vulnerable to Joseph Raz's objections3 that not all cases of law make a moral difference and that governmental authority is often unnecessary to resolve coordination problems. I argue that Raz's critique nonetheless fails adequately to address an alternative defense of the existence of a generic and presumptive obligation to obey the law, suggested by some passages in Finnis's work, according to which the common good is integral, rather than merely instrumental, to the good of individuals. In the final section I consider whether Finnis could strengthen his case for a generic and presumptive obligation to obey the law by adopting a more consistently robust—and hence also more contentious—account of the common good.

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.

The criminal law presently distinguishes between actions and omissions, and only rarely proscribes failures to avert consequences that it would be an offense to bring about. Why? In recent years it has been persuasively argued by both Glover and Bennett that, celeris paribus, omissions to prevent a harm are just as culpable as are actions which bring that harm about. On the other hand, and acknowledging that hitherto “lawyers have not been very successful in finding a rationale for it,” Tony Honoré has sought to defend the law's differential treatment. He proposes a “distinct-duties theory” that in addition to the general duties we owe to everyone (e.g., not to inflict harm), we also owe distinct duties to a more limited collection of people and associations, specified by features of our relationship with them (we owe, for instance, duties as parents to our own children). Where a distinct duty holds, breach by omission may well be no better than breach by positive action. But absent a distinct duty, omissions, per Honoré, are less culpable. They are mere failures to intervene and improve or rectify things, whereas actions are positive interventions which make things worse. And, thus, the law has good reason to differentiate between them.

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.

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.

According to a recent wave of work by legal anti-positivists, legal norms are a subset of moral norms. This striking “one-system” view of law has rapidly become the dominant form of anti-positivism, but its implications have so far been little tested. This article argues that the one-system view leads systematically to untenable conclusions about what legal rights and obligations we have. For many clear legal norms, the view lacks the resources to explain the existence of corresponding moral norms. And its criteria for distinguishing legal norms within morality imply an under- or over-inclusive set of legal norms. I stress the special difficulties that apply beyond obligations, in the case of privileges and powers, and I show that the view's problems do not only—or mainly—concern egregiously unjust law, or indeed morally defective law at all. I close with reflections on legal normativity and the prospects for different forms of anti-positivism.

According to the legal rationalist, the law claims to give its subjects reasons for action. The leading legal rationalist, Joseph Raz, says, “the law claims that the existence of legal rules is a reason for conforming behaviour.” Putting the same point more casually, he writes:

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.

Consider the following examples of behavior by Smith:

1. Smith, seated at her restaurant table, gives an order to the waiter;

2. Smith gets into a cab and names a destination;

3. Smith agrees to Jones's suggestion that they go back to Jones's apartment for a few drinks;

4. Smith casts her vote in some election.

In each of these instances what can Smith be understood as consenting to? Is she consenting to (1) pay the bill for whatever meal she orders; (2) pay the fare for the journey to her named destination; (3) sexual intimacy with Jones; and (4) accept the authority of whatever individual or political part is elected? The fact that Smith does not actually express her consent to each of these states of affairs or outcomes need not mean that she is not giving her consent to them. The idea that individuals can give their consent in ways other than by means of a formal verbal expression of agreement is a familiar, if controversial, one.

The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists (David Lyons, Hans Kelsen, and, especially, Ronald Dworkin). I propose that a good account of vagueness will have three consequences for legal theory: (i) Theories that deny that vagueness in formulations of the law leads to discretion in adjudication (including Dworkin's) cannot accommodate “higher-order” vagueness, (ii) A legal theory should accept that the law is partly indeterminate when it can be stated in vague language, (iii) However, the traditional formulation of the indeterminacy claim, that a vague statement is “neither true nor false” in a borderline case, is misconceived and should be abandoned.

In recent years, American tort law has been the beneficiary of a growing effort by sophisticated legal theorists to advance a theory that both descriptively and normatively accounts for its doctrines on non-utilitarian grounds.See, e.g., the rich set of essays recently compiled by David Owen upon which I shall draw extensively in this piece. PHILOSOPHICAL FOUNDATIONSOF TORT LAW (David G. Owen ed., Clarendon Press, 1995) (hereinafter PHILOSOPHICAL FOUNDATIONS). Yet despite the formidable challenges that this literature has posed for the economic analyses that have dominated tort law theorizing in recent decades, central tort doctrines persist in defying efforts to describe and defend them as vehicles for redressing rights violations. In saying this, I do not mean to refer to such obvious things as the fact that the Hand Formula“[I]f the probability [of a foreseeable plaintiff’s injury] be called P; the injury, L; and the burden [of precautions necessary to avert L], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B [is less than ] PL.” United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). appears to allow rights violations in the name of utility or wealth maximization (although corrective justice theorists must admit that the fact that the Hand Formula dominates contemporary characterizations of negligence is a painful theoretical thorn in their sidesFor a denial of the prominence of economic analysis in doctrinal explanation, see Richard W. Wright, The Standards of Care in Negligence Law,in PHILOSOPHICAL FOUNDATIONS, 249–75, 250. For a deontological account of tort law’s use of the Hand Formula, see Heidi M. Hurd, The Deontology of Negligence, 76 B. U. L. REV. 249–72 (1996).). Rather, I have in mind the more subtle but more significant fact that myriad tort doctrines reflect the fundamental thesis that persons have obligations to (re-)structure their conduct so as to mitigate the harms caused by others’ foreseeable wrongdoing—obligations which, when violated, properly serve as a basis for declaring such persons negligent.

Herbert Simon once observed that watching an ant make its way across the uneven surface of a beach, one can easily be impressed—too impressed—with the foresight and complexity of the ant's internal map of the beach. Simon went on to point out that such an attribution of complexity to the ant makes a serious mistake. Most of the complexity is not in the ant but in the beach. The ant is just complex enough to use the features of the beach to find its way.

2018 marked the centenary of Wesley Hohfeld's untimely passing. Curiously, in recent years quite a few legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights either, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify, among other things, “extra-legal” factors as the real drivers of judicial decision-making, nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will help to correct some misunderstandings about his work and point to its utility in many more contexts than a Realist reading of it allows.

In this paper I critically examine Michael Moore's views about responsibility in overdetermination cases. Moore argues for an asymmetrical view concerning actions and omissions: whereas our actions can make us responsible in overdetermination cases, our omissions cannot. Moore argues for this view on the basis of a causal claim: actions can be causes but omissions cannot. I suggest that we should reject Moore's views about responsibility and overdetermination. I argue, in particular, that our omissions (just like our actions) can make us responsible in overdetermination cases. I go on to provide an account of how this may be possible.