Ori Herstein King's College London
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  1. Ori J. Herstein (forthcoming). Responsibility in Negligence: Discussion of 'From Normativity to Responsibility'. Jerusalem Review of Legal Studies.
    This essay explains, expands, develops, and reflects on the Razian theory of responsibility and identity, focusing primarily on responsibility for negligent actions. I begin with setting the stage for understanding the importance of Joseph Raz’s theory and what motivates it. Next, the essay lays out the theory itself, and offers some elaboration on some of the less developed features of the theory. The essay closes with two critical reflections.
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  2. Ori J. Herstein (2013). A Legal Right to Do Legal Wrong. Oxford Journal of Legal Studies (1):gqt022.
    The literature, as are the intuitions of many, is sceptical as to the coherence of ‘legal rights to do legal wrong’. A right to do wrong is a right against interference with wrongdoing. A legal right to do legal wrong is, therefore, a right against legal enforcement of legal duty. It is, in other words, a right that shields the right holder’s legal wrongdoing. The sceptics notwithstanding, the category of ‘legal right to do legal wrong’ coheres with the concepts of (...)
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  3. Ori J. Herstein (2013). Why 'Nonexistent People' Do Not Have Zero Wellbeing but No Wellbeing at All. Journal of Applied Philosophy 30 (2):136-145.
    Some believe that the harm or benefit of existence is assessed by comparing a person's actual state of wellbeing with the level of wellbeing they would have had had they never existed. This approach relies on ascribing a state or level of wellbeing to ‘nonexistent people’, which seems a peculiar practice: how can we attribute wellbeing to a ‘nonexistent person'? To explain away this oddity, some have argued that because no properties of wellbeing can be attributed to ‘nonexistent people’ such (...)
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  4. Ori J. Herstein (2012). Defending the Right To Do Wrong. Law and Philosophy 31 (3):343-365.
    Are there moral rights to do moral wrong? A right to do wrong is a right that others not interfere with the right-holder’s wrongdoing. It is a right against enforcement of duty, that is a right that others not interfere with one’s violation of one’s own obligations. The strongest reason for moral rights to do moral wrong is grounded in the value of personal autonomy. Having a measure of protected choice (that is a right) to do wrong is a condition (...)
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  5. Ori J. Herstein (2011). A Normative Theory of the Clean Hands Defense. Legal Theory 17 (3):171-208.
    What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD's primary norm. Yet, while the CHD may at times further court integrity, it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims (...)
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  6. Ori J. Herstein (2010). Justifying Subversion: Why Nussbaum Got (the Better Interpretation of) Butler Wrong. Buffalo Journal of Gender, Law and Social Policy 18:43-73.
    Deconstructive and poststructuralist theories are commonly accused of rejecting all principles of justice and therefore “collaborating with evil.” A canonical example is Martha Nussbaum’s “The Professor of Parody” on the work of Judith Butler. The merits of Nussbaum’s argument and of the “common critique” turn on choosing between two alternative interpretations of Butler’s corpus and of poststructuralism in general. First, assumed in Nussbaum’s critique, is “universal poststructuralism.” Second is “contextual poststructuralism,” which is not susceptible to the common critique. According to (...)
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  7. Ori J. Herstein (2010). Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”. Canadian Journal of Law and Jurisprudence 23 (2):403-428.
    Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (...)
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  8. Ori J. Herstein (2009). Historic Injustice, Group Membership and Harm to Individuals: Defending Claims for Historic Justice From the Non-Identity Problem. Harvard Journal of Racial and Ethnic Justice 25:229.
    Some claim slavery did not harm the descendants of slaves since, without slavery, its descendants would never have been born and a life worth living, even one including the subsequent harms of past slavery, is preferable to never having been born at all. This creates a classic puzzle known as the non-identity argument, applied to reject the validity of claims for historic justice based on harms to descendants of victims of historic wrongs: since descendants are never harmed by historic wrongs, (...)
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  9. Ori J. Herstein (2009). The Identity and (Legal) Rights of Future Generations. The George Washington Law Review 77:1173.
    Exploring the peculiar nature of future generations and concluding that types of future people is the most promising object on which to project our concern for future generations the article poses two main questions: “Can future people have rights?” and, if so, “Do they in fact have any rights?” The article first explains why the non-existence of future people raises doubts whether future generations can have rights. Within the philosophical literature, the leading approach explaining how future people can, nevertheless, have (...)
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  10. Ori J. Herstein (2008). Historic Justice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution. [REVIEW] Law and Philosophy 27 (5):505 - 531.
    The "non-identity argument" has been applied to reject the validity of claims for historic justice, often generating highly unintuitive conclusions. George Sher has suggested a solution to this problem, explaining the harm to descendants of historically wronged peoples as deriving not from the historic wrongs but from the failure to provide rectification to the previous generation for harm they suffered. That generation was likewise owed rectification for harm they suffered from failure to provide rectification to the generation preceding them. In (...)
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