My aim in this paper is to consider the conception of responsibility that is appropriate to the enforcement of standards of justice, both distributive and corrective. I will defend what I will call a reciprocity conception of responsibility, which supposes that responsibility must be understood in terms of norms governing what people are entitled to expect of each other. If I have sole responsibility to look out for myself, or for some interests of yours, then I am not entitled to (...) expect anything from you or others and I am responsible, that is, answerable, for how things turn out. My argument for the reciprocity conception is meant to apply only to its role in institutions charged with giving justice. Conceptions of responsibility, other than this institutional one I defend, may well be appropriate, or unavoidable, for other purposes. In defending the reciprocity conception, I will be contrasting it with a family of non-instrumentalist conceptions of responsibility which I loosely group together under the title of “agency” conceptions. The grouping is loose, but legitimate, I think, because all members of the agency group suppose that the moral significance of responsibility derives from the ways in which a person acts in the world rather than, in distinction, upon what one may expect of others. In terms favoured by Gary Watson, agency conceptions suppose that the way in which a deed or consequence is attributed to the agency of its author, that is, “responsibility as attributability,” provides the basis for the moral interest we take in the responsibility of others, that is, “responsibility as moral accountability.”1 Different versions of the agency conception are all alike in supposing that the basis of a person’s moral accountability is fixed by the concept of attributability as applied to that person. But all versions of the agency conception suppose that to explain moral accountability, one must simply come up with the correct refinement of the idea of attributability.. (shrink)
In A Theory of Justice, Rawls makes almost no mention of the issues of justice that animated philosophers in earlier centuries. There is no discussion of justice between persons, issues that Aristotle sought to explain under the idea of “corrective justice.” Nor is there discussion, except in passing, of punishment, another primary focus of the social contract approaches of Locke, Rousseau and Kant.1 My aim in this article is to argue that implicit in Rawls’s writing is a powerful and persuasive (...) account of the normative significance of tort law and corrective justice. (shrink)
What are preferences and are they reasons for action? Is it rational to cooperate with others even if that entails acting against one's preferences? The dominant position in philosophy on the topic of practical rationality is that one acts so as to maximize the satisfaction of one's preferences. This view is most closely associated with the work of David Gauthier, and in this new collection of essays some of the most innovative philosophers currently working in this field explore the controversies (...) surrounding Gauthier's position. Several essays argue against influential conceptions of preference, while others suggest that received conceptions of rational action misidentify the normative significance of rules and practices. This collection will be of particular interest to philosophers of social theory and to reflective social scientists in such fields as economics, political science and psychology. (shrink)
In one of the few widely discussed passages in the Doctrine of Right, Kant makes the surprising claim that a shipwrecked sailor who dislodges another from a plank that will support only one of them is "culpable, but not punishable." Many commentators regard this passage as a sort of smoking gun that shows that, in extremis, Kant resorts to the very sort of empirical and consequentialist reasoning that he claims to do without.2 My aim in this paper is (...) to defend his analysis, by showing both that it can be generalized, and that it provides a satisfying account of the normative boundary between justification and excuse in the criminal law. After explaining Kant’s remark in light of the context in which he makes it, my main strategy of defense will be to show how it applies not only to the specific example Kant considers, but also to cases in which a person responds to danger by damaging property, and those in which a person whose own life is not in danger breaks the law to save the life of another. I will also use his account to illustrate the difficulties with the leading alternatives. (shrink)
Ronald Dworkin occupies a distinctive place in both public life and philosophy. In public life, he is a regular contributor to The New York Review of Books and other widely read journals. In philosophy, he has written important and influential works on many of the most prominent issues in legal and political philosophy. In both cases, his interventions have in part shaped the debates he joined. His opposition to Robert Bork's nomination for the United States Supreme Court gave new centrality (...) to debates about the public role of judges and the role of original intent in constitutional interpretation. His writings in legal philosophy have reoriented the modern debate about legal positivism and natural law. In political philosophy, he has shaped the ways in which people debate the nature of equality; he has spawned a substantial literature about the relation between luck and responsibility in distributive justice; he has reframed debates about the sanctity of life. His work has also been the focus of many recent discussions of both democracy and the rule of law. This volume contains new essays on Dworkin's key contributions by writers who have themselves made important interventions in the debates. (shrink)
The 2008 meltdown in global capital markets has led to a renewed interest in questions of economic distribution. Many people suggest that the motives, incentive structures, and institutions in place were inadequate and, for the first time in a generation, public debate is animated by arguments about the need for greater equality. G.A. Cohen's new book resonates with many of the themes of these debates; he advocates a more thoroughgoing equality, even more thoroughgoing than that demanded by John Rawls in (...) his Theory of Justice; he also advocates for a political philosophy organized around the ethos that shapes ordinary life, rather than one restricted to the coercive institutions of law and the state. Were ordinary .. (shrink)
Faculty of Law and Department of Philosophy, University of Toronto 1. INTRODUCTION The economic analysis of law has gone through a remarkable change in the past decade and a half. The founding articles of the discipline – such classic pieces as Ronald Coase’s “The problem of social cost” (1960), Richard Posner’s “A theory of negligence” (1972) and Guido Calabresi and Douglas Malamed’s “Property rules, liability rules, and inalienability: One view of the cathedral” (1972) – offered economic analyses of familiar aspects (...) of the common law, seeking to explain, in particular, fundamental features of the law of tort in terms of such economic ideas as transaction costs (Coase), Kaldor-Hicks efﬁciency (Posner), or minimizing the sum of the accident costs and avoidance costs (Calabresi and Malamed). In each case, they argued that the law of torts should be understood as a set of liability rules selected for their incentive effects, rather than as a set of substantive rights and remedies for their violation. These authors claimed to be able to explain most of the features of tort law and, where features were found that did not ﬁt with their preferred explanations, recommended modiﬁcation. Although they disagreed on important questions,1 each of the pieces seems to work a manageable structure into what strikes ﬁrst-year law students as an otherwise random morass of common-law judgments. Generations of legal academics were introduced to these works, and drawn into their way of looking at things. As a student studying ﬁrst-year torts with Calabresi at Yale, I had the sense that I was in the presence of greatness. (shrink)
This paper responds briefly to four reviews of Force and Freedom. Valentini and Sangiovanni criticize what they see as the excessive formalism of the Kantian enterprise, contending that the Kantian project is circular, because it defines rights and freedom together, and that this circularity renders it unable to say anything determinate about appropriate restrictions and permissions. I show that the appearance of circularity arises from a misconstrual of the Kantian idea of a right. Properly understood, Kantian rights are partially indeterminate, (...) but not in a way that causes problems for the account. Ronzoni and Williams seek to broaden the reach of public right, arguing that Kant's abstract approach overlooks pressing questions of social and political life, (Ronzoni) and that public right should allow for democratic deliberation about purposes that go beyond the requirement that a state provide a rightful condition for its members (Williams). I argue that the Kantian view makes room for these factors, but that each must be understood in relation to the formal constraints of right. (shrink)
I am grateful to Donald Ainslie, Lisa Austin, Michael Blake, Abraham Drassinower, David Dyzenhaus, George Fletcher, Robert Gibbs, Louis-Philippe Hodgson, Sari Kisilevsky, Dennis Klimchuk, Christopher Morris, Scott Shapiro, Horacio Spector, Sergio Tenenbaum, Malcolm Thorburn, Ernest Weinrib, Karen Weisman, and the Editors of Philosophy & Public Affairs for comments, and audiences in the UCLA Philosophy Department and Columbia Law School for their questions.
Law students are usually told that the purpose of damages is to make it as if a wrong had never happened.3 Although torts professors are good at explaining this idea to their students, it is the source of much academic perplexity. Money cannot really make serious losses go away, and it seems a cruel joke to say that money can make an injured person “whole.” Worse still, if money could make an injured person whole, injuring someone and then paying them (...) seems just as good as not injuring them at all. (shrink)
I have, in other places, claimed that philosophy is the analysis of the forms of presentation, the description of the ways in which things can be presented. †11 The philosophical reflection that issues in such analysis is not, of course, the same as the kind of reflection we are discussing in this paper, the kind that establishes human existence in language. But unless there were the reflection that opens the possibility of meaning, there could not be any philosophical reflection either. (...) Philosophical thinking brings to a new level the distancing to experience that is begun in all human speech. (shrink)
There is no question ArthurRipstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But (...) the same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society. (shrink)
This introduction provides a very brief sketch of the fundamental claims of ArthurRipstein's Force and Freedom before locating the criticisms of his interlocutors in relation to those claims. Valentini and Sangiovanni are situated as critics of the Kantian frame, while Ronzoni and Williams are critics situated within that frame.
This superb, exemplary account of Immanuel Kant’s legal and political philosophy is essential reading not only for Kant scholars, but also for political philosophers and philosophers of law. Lucidly reasoned and written with crystalline clarity, the book is both accessible to non-specialists and a pleasure to read. Ripstein reveals the coherent, systematic structure of thought in Kant’s obscurely written Doctrine of Right, and goes beyond illumination to defense and development of Kant’s conception of equal freedom. In the course of (...) doing all of this, he not only presents Kant in historical context, but also brings to light important differences between Kant’s views and those of other political philosophers and .. (shrink)
Central to Nozick’s Anarchy, State and Utopia is a defense of the legitimacy of the minimal state’s use of coercion against anarchist objections. Individuals acting within their natural rights can establish the state without committing wrongdoing against those who disagree. Nozick attempts to show that even with a natural executive right, individuals need not actually consent to incur political obligations. Nozick’s argument relies on an account of compensation to remedy the infringement of the non-consenters’ procedural rights. Compensation, however, cannot remedy (...) the infringement, for either it is superfluous to Nozick’s account of procedural rights, or it is made to play a role inconsistent with Nozick’s liberal voluntarist commitments. Nevertheless, Nozick’s account of procedural rights contains clues for how to solve the problem. Since procedural rights are incompatible with a natural executive right, Nozickeans can argue that only the state can enforce individuals’ rights without wronging anyone, thus refuting the anarchist. Thanks to Annette Dufner, Arnt Myrstad, ArthurRipstein, Gopal Sreenivasan, James Sterba, Chloe Taylor, Sergio Tenenbaum, and Shelley Weinberg. Thanks also to Matt Zwolinski and Jonelle DePetro, who commented on earlier versions of the paper at the Central APA 2007 and at the 2006 Illinois Philosophical Association Conference (respectively). Finally, thanks to my graduate students at the University of Illinois at Urbana-Champaign for their active engagement with the ideas during a seminar on liberal theories of justice (fall 2007). (shrink)
Much contemporary political philosophy claims to be Kant-inspired, but its aims and method differ from Kant's own. In his recent book, Force and Freedom, ArthurRipstein advocates a more orthodox Kantian outlook, presenting it as superior to dominant (Kant-inspired) views. The most striking feature of this outlook is its attempt to ground the whole of political morality in one right: the right to freedom, understood as the right to be independent of others’ choices. Is Ripstein's Kantian project (...) successful? In this research note I argue that it is not. First, I suggest that Ripstein's notion of freedom is viciously circular. It is meant to ground all rights, but in fact it presupposes an account of those rights. Second, I show that—independently of its inability to ground a whole political morality—such a moralized understanding of freedom is normatively unappealing. (shrink)