Philosophy of Law

Nudges are small psychological prompts that steer behavior in a noncoercive way. For example, low‐calorie products can be placed at eye level to encourage people to eat healthier. This article argues that governmental nudges are in tension with Fuller's formal legality principle, according to which regulation should meet requirements such as generality and promulgation. Moreover, it shows that this tension can be solved by taking two steps. The first consists in revising the principle of legality in light of the psychological (...) insights that have inspired the theory of nudging; the second in tweaking the requirements of legality so as to arrive at a special legality principle for nudges. (shrink)

Law and the Modern Mind first appeared in 1930 when, in the words of Judge Charles E. Clark, it "fell like a bomb on the legal world." In the generations since, its influence has grown--today it is accepted as a classic of general jurisprudence. The work is a bold and persuasive attack on the delusion that the law is a bastion of predictable and logical action. Jerome Frank's controversial thesis is that the decisions made by judge and jury are determined (...) to an enormous extent by powerful, concealed, and highly idiosyncratic psychological prejudices that these decision-makers bring to the courtroom. Frank points out that legal verdicts are supposed to result from the application of legal rules to the facts of the suit--a procedure that sounds utterly methodical. Frank argues, that profound, immeasurable biases strongly influence the judge and jury's reaction to witnesses, lawyers, and litigants. As a result, we can never know what they will believe "the facts of the suit" to be. The trial's results become unforeseeable, the lawyer's advice unreliable, and the cause of justice insecure. This edition includes the author's final preface in which he answers two decades of criticism of his position. (shrink)

This paper conceptualizes the administrative punishment of police misconduct as a republican retributivist endeavor. Blameworthiness for police misconduct stems from its collective and civic harms to liberty — as conceived of as equal protection, rather than non-interference. Police have a special obligation to uphold liberty. Failing to uphold these conditions of liberty is what makes misconduct blameworthy. Police misconduct, insofar as it represents the arbitrary domination of some people over others, threatens republican freedom. I trace this conception of police misconduct (...) across various categories of police misconduct, including criminal and non-criminal violations and violations that do and do not use police powers. While administrative punishment for police misconduct may be justified by its consequences, there also exists a retributive element to this punishment. Republicanism explains why officers are blameworthy for police misconduct, and retributivism explains why they ought to be punished for that blameworthiness. I conclude with an argument for why this republican retributivist paradigm is more coherent than traditional consequentialist or retributivist ones. (shrink)

This is a response to commentaries by Karamvir Chadha and Rachel Clement Tolley on my book Criminalizing Sex: A Unified Liberal Theory. I sought there to develop a vision of the criminal law that would “contain provisions that adequately criminalize all cases in which an offender subjects a victim to nonconsensual sex but do so without criminalizing any cases involving sex that is genuinely consensual or aconsensual and would not adversely impact third parties.” Chadha argues that my stated goal of (...) not criminalizing genuinely consensual sex is inconsistent with my receptivity to the “affirmative consent” rule, as well as to the criminalization of violent, though consensual, sadomasochistic sex. In response, I argue that the goal of never criminalizing genuinely consensual sex is meant to be an “ideal,” and that, given problems of proof, any real-world system of criminal justice may have to accept the possibility that some false positives, in certain kinds of situations, should be criminalized, as a cost of preventing too many false negatives from escaping liability. In addition, I explain why my approach to criminalizing violent, though consensual, SM is not, as Chadha claims, inconsistent with my explanation for why we should think of sexual assault as involving a different sort of wrong than nonsexual assault. Tolley, in her essay, responds to my discussion of the crime of rape by deceit. In my book, I had argued that defining that offense too broadly would create negative side effects, such as diluting the stigma of rape, chilling socially positive sexual encounters, and creating uncertainty about exactly which conduct is prohibited. Tolley does not disagree with this diagnosis, but she differs with respect to its cure. Rather than focusing on the relative wrongfulness of the underlying deception (its “content”), she thinks that we should focus instead on what she calls its “form.” Here, she distinguishes among, for example, literally false statements, literally true but misleading statements, and nondisclosures of material information. I argue that Tolley’s analysis, though nuanced, is too complex to have much practical value, and that a better approach would be a simpler one, which focuses on types of deceit generally recognized by society as “more serious.”. (shrink)

Protest is often theorized in terms of the relationship between the protest and its audience—lawmakers, the public, and the media. Refreshingly, José Medina’s The Epistemology of Protest balances this standard approach with consideration of the internal life of protest. Analyzing the complexity within what is often seen as a monolithic spectacle, Medina demonstrates that this internal perspective is important not only for understanding the experience, nature, and power of protest, but also for understanding how protests are—and ought to be—taken up (...) by society. After reviewing Medina’s analysis, I offer three comments. The first concerns the verbal-content-independence thesis, which is a crucial link in Medina’s analysis of the communicative complexity of protest. The second concerns uncivil protest and attention—while uncivil protest may be an efficient way to gather the “raw materials” for epistemic activism, the work of waking people from their epistemic and political slumber, as Medina puts it, requires far more careful engineering of attention. I conclude with considerations concerning the internal structure of protest. (shrink)

This paper conceptualizes the administrative punishment of police misconduct as a republican retributivist endeavor. Blameworthiness for police misconduct stems from its collective and civic harms to liberty — as conceived of as equal protection, rather than non-interference. Police have a special obligation to uphold liberty. Failing to uphold these conditions of liberty is what makes misconduct blameworthy. Police misconduct, insofar as it represents the arbitrary domination of some people over others, threatens republican freedom. I trace this conception of police misconduct (...) across various categories of police misconduct, including criminal and non-criminal violations and violations that do and do not use police powers. While administrative punishment for police misconduct may be justified by its consequences, there also exists a retributive element to this punishment. Republicanism explains why officers are blameworthy for police misconduct, and retributivism explains why they ought to be punished for that blameworthiness. I conclude with an argument for why this republican retributivist paradigm is more coherent than traditional consequentialist or retributivist ones. (shrink)

Imprisonment affects prisoners’ families. Empirical research tells us that some families benefit from this separation, particularly when they are victims of crime or abuse. But for many, imprisonment has a negative impact on family life, which can be intensified by other pre-existing factors. The main literature on the harm that imprisonment causes family members is empirical, but these empirical findings raise difficult moral questions. How might we approach these side-effects? One view, The Simple View, suggests these side-effects are proportionate so (...) long as the overall harm produced does not outweigh the good punishment aims to achieve. This paper defends The Complex View. Here, proportionality requires us to think about factors beyond the magnitude of harm. Drawing upon existing moral and political philosophy, I aim to show three other factors that may alter how certain harms and benefits figure in proportionality calculations. (shrink)

Many jurisdictions confer a constitutional right to be protected against cruel and unusual punishments. This right is typically justified by three considerations. First, cruel and unusual punishments undermine human dignity. Second, such punishments shock the community’s conscience or violate evolving standards of decency. Third, grossly excessive sanctions violate proportionality constraints. This article advances an additional justification for the prohibition against cruel and unusual punishments. Drawing on Kantian theories of public authority, republicanism, and fiduciary theories of legal authority, it argues that (...) cruel and unusual punishments are objectionable because they constitute a form of legislative gross negligence that the Constitution prohibits. The core arguments of this article demonstrate why lawmakers have a fiduciary duty to ensure that the punishments they enact do not inflict needless harm and suffering—an obligation that requires them to enact sanctions that respect proportionality constraints. Lawmakers engage in legislative gross negligence when they enact cruel and unusual sanctions that are either indifferent to individuals’ interests to avoid unnecessary harm or depart significantly from the applicable standard of care. Ultimately, the right to be protected against cruel and unusual sanctions safeguards individuals against legislative gross negligence that results in grossly excessive punishments. (shrink)

Scholars depict punishment as a moral dialogue between the community and the offender, which addresses both the offender’s crime and character. However, how the penal message evolves vis a vis that crime and character as it passes through the different stages of the criminal process has remained under-theorized. This article, building on communicative theory, explores the interrelation between crime and character along the penal process, from sentencing, through prison, to parole release. We argue that in the penal dialogue the relationship (...) between crime and character evolves in a dynamic way through three phases: separateness (sentencing), fusion (prison), and re-distinction (parole) of crime and character. The proposed analysis develops the communicative meaning of the penal process, provides a normative account of the work of punishment administration authorities, and explores applications of our proposed normative analysis for the administration of the punishment. (shrink)

The privilege against self-incrimination entails that anyone accused of a criminal offence has the right to remain silent. However, waiving the privilege is possible, but such waiver must be voluntary and in accordance with the will of the accused. This article examines the impact of sentence reductions based on confessions on the voluntariness of confessions. I argue that the concept of voluntariness must be interpreted from the perspective of the values and objectives underlying the privilege against self-incrimination. Depending on the (...) perspective chosen (i.e. objectives and values), sentence reductions can be problematic from the standpoint of the privilege against self-incrimination and the voluntariness requirement it entails. However, it should be also noted that moderate incentives can simultaneously promote the realization of these values and objectives, such as material truth. Categorical negative attitude towards all sentence reductions can be detrimental to the values that the privilege and the voluntariness requirement seek to protect. (shrink)

In Criminalizing Sex, Stuart P Green aims to provide a unified liberal theory of sexual offenses law. Green’s strategy is to provide a rational reconstruction of sexual offenses law that centres consent. In this article, I raise some doubts about whether Green fully succeeds in his aim. Nevertheless, Criminalizing Sex is an impressive book, and essential reading for anyone interested in the liberal foundations of sexual offenses law.

In Criminalizing Sex, Stuart Green wisely eschews any attempt to fully analyse the problem of ‘sex-by-deception’ in a single chapter, instead offering a ‘basic framework’ for determining whether an expansion of the law of ‘rape by deceit’ might be justified. In this article, I offer a revision to that framework. Green begins from an account of rape centred on the right to (negative) sexual autonomy and seeks to reject an expansionist account under which any deceptions and mistakes could vitiate consent (...) to sexual activity. Sharing these starting points, I argue, pace Green, that variations in the harmfulness and wrongfulness of different deceptions cannot ground content-based restrictions on consent-vitiating deceptions. I argue that whilst different kinds of deceptive practices might wrong V to a greater or lesser extent, these variations lead to content-neutral, form-based restrictions on consent-vitiating deceptions. Moreover, whilst variations in the harms of D’s conduct are unlikely to ground a coherent set of content-sensitive restrictions on consent-vitiating deceptions, the harms of criminalisation differ depending on the content of the deception in question and this might lead to content-based restrictions on liability. However, an analysis of the variable costs of criminalisation is not obviously connected to the moral concept of consent-validity. Accordingly, whilst I suspect that both form and content-based restrictions on consent-vitiating deceptions are warranted in this area, the justification for the latter is unlikely to lie within an analysis of consent-validity itself, or the varied harmfulness and wrongfulness of D’s own conduct. (shrink)

The policy adopted by housing authorities of denying prospective tenants with a criminal record access to housing is an important barrier to ex-offenders seeking somewhere to live. The policy is legal, but are there any good reasons in favor of it when we know that having no, or limited, access to secure and affordable housing increases the probability of recidivism? The primary aim of this article is to critically discuss two central reasons that have been given for denying people with (...) criminal records access to housing: that doing so will prevent crime, and that the policy reduces fear of crime. We also try to evaluate an argument for the conclusion that current law, and the policies that follows wrongfully discriminate against people with criminal records. The general thrust of the article is that arguments for this practice turning on its crime preventive effect, and its role in reducing or preventing fear of crime, are unpersuasive. We then explained why, in our view, excluding ex-offenders from housing amounts to wrongful discrimination against them. Our analysis suggests that ex-offenders, apart from a few excemptions, ought to be allowed access to housing to the same extent as other people. (shrink)

Appendices: I. The names of the law.--II. The theory of sovereignty; excursus.--III. The maxims of the law.--IV. The divisions of the law.--V. The territory of the state.--VI. International law.--VII. Authorities.

In this work, I contribute to the debate on the status and legitimacy of principled disobedience in a democratic polity. After introducing the notion, I move to argue that principled disobedience can be framed not only as a moral and political stance but also, and without contradiction, as a legal requirement. As a result, it will be maintained that not only can we engage in principled disobedience without necessarily violating our legal obligations, but these obligations may actually mandate principled disobedience. (...) This framing of the problem of principled lawbreaking makes the proposed discussion distinctive and original in virtue of its claim—namely, that we may have not only a moral justification to disobey the law but a legal obligation to do so, an obligation to break the law on principled legal grounds. (shrink)

The purpose of Adam Kolber’s magnificent book is to show that a consequentialist theory of punishment is superior to standard retributivism. In this comment I argue that Kolber is right when he rejects the claim that the traditional punishment of the innocent argument provides sufficient grounds for the rejection of consequentialism, but also that it may be the case that threshold retributivism is more attractive than consequentialism when it comes to intuitive fit. Furthermore, it is suggested that this possibility gives (...) rise to a trilemma which Kolber will have to confront in order to ultimately establish the superiority of consequentialism over retributivism. (shrink)

This article critically examines the proposed use of the psychiatric distinction between delusions and extreme overvalued beliefs as a tool for distinguishing criminal insanity from (mere) violent extremism. The analysis contrasts this distinction with a wholly normative one that we designed to better fulfill the same purpose. This normative distinction, based on concepts from John Rawls’ political philosophy, highlights and depends upon a host of political considerations relevant to the ideals of the criminal justice system and the rights and freedoms (...) fundamental to the political systems in which it is situated. These considerations challenge the psychiatric distinction between delusions and extreme overvalued beliefs, suggesting that criminal responsibility cannot be adequately explained or justified by psychiatric factors alone. The article further explores the case of criminal accountability for psychopaths and concludes that neither the psychiatric diagnosis of psychopathy nor the empirical findings that one may lack the capacity for empathy is determinative in such cases. Evaluations of criminal responsibility involve a host of other moral and political considerations, and the weight one gives to those considerations ultimately provides the basis for a legitimate determination of responsibility within the criminal law. (shrink)

The core of this book is a continuation of the efforts, apparent in the work of Max Weber, to resolve or integrate the dualism which is affecting law. The introduction discusses the author's place in the history of the sociology of law and the context in which his works should be placed.

This article examines the relationship between relationality and policy in tort law from an evolutionary perspective. While, as part of the regulatory system, tort law must evolve in response to structural and allocative policy concerns, its ability to do so is limited by the relational normative structure through which it operates and claims moral authority. This tension is often obscured in mainstream tort theory. Drawing on contractualist philosophy—which traces the implications of mutual recognition and respect across structural, allocative, and relational (...) normative contexts—the article develops a principled reasoning framework that avoids rigid hierarchies and ad hoc balancing: negative policy reasons not to adopt tort norms take precedence in choices of regulatory regimes, while positive policy reasons must be diluted and integrated with relational reasons to shape the content of tort norms. This normative framework illuminates tort law’s ability to respond to complex normative challenges while retaining its integrity and unique value as a regulatory tool. (shrink)

Racial justice is widely seen as a central moral and political ideal of our time, especially on the liberal-egalitarian left. And racial justice goes hand in hand with racial equality. The centrality of these ideals would be hard to justify if they had no bearing on material or economic inequality, or applied solely to semiotic and cultural issues. But we argue that, at present, the only plausible basis for understanding racial equality as a distinctive aim for the economic domain—rather than (...) a mere implication of more general egalitarian or progressive principles—rests on minimal state, right-libertarian foundations. As such, racial equality is a strange focus for the left. (shrink)

Legal theorists agree widely on two necessary and jointly sufficient conditions for the existence of a legal system: a legal system exists if (i) legal officials adopt a critically reflective attitude toward the legal system’s foundational rule, and (ii) the substantive laws of the system are “by and large” efficacious. The latter “efficacy condition” plausibly applies to all posited law, paradigmatically including modern centralized legal systems and less paradigmatic instances like international law. And yet, philosophers have also frequently pointed out (...) the difficulty in determining precisely what this efficacy amounts to. In this article, I argue that the persisting difficulty of explaining the efficacy of law results from three tempting but inadequate assumptions about posited law and that our basic assumptions need to be revised accordingly. (shrink)

The general aim of this paper is to investigate how philosophical problems with the notion of mental content affect the debate about legislative intent. Specifically, the aim is to define and criticize the metaphysically strongest-possible version of realism about legislative intent, namely “Strong Realism”: the idea that the content of legislation is objectively determined by legislatures that are treated as irreducible group agents that are bearers of corporate, functionalist intentions. Against this view, it will be argued that legislatures are insufficiently (...) complex to meet the criteria of being bearers of sui generis propositional states. The failure of this strong, most idealized version of realism heralds bad news for all forms of realism as trying to weaken this position will not deliver the right theoretical goods. Thus, the failure of Strong Realism gives us reasons to prefer a constructivist/fictionalist approach to legislative intent. (shrink)