Some goods and services seem to be fundamentally public, such as legislation, criminal punishment, and fighting wars. By contrast, other functions, such as garbage collection, do not. This volume brings together prominent scholars from a range of academic fields - including law, economics, philosophy, and sociology - to address the core question of what makes a certain good or service fundamentally public and why. Sometimes, governments and other public entities are superior because they are more likely to get at the (...) right decisions or follow fair procedures. In other instances, the provision of goods and services by public entities is intrinsically valuable. By analyzing the these answers, the authors also explore the nature of the state and its authority. This handbook explores influential arguments for and against privatization and also develops a number of key studies explaining, justifying, or challenging the legitimacy and the desirability of public provision of particular goods and services. (shrink)

ABSTRACTThis article develops a theory of just contractual relationships for a liberal society. As a liberal theory, our account is premised on liberalism's canonical commitments to self-determination and substantive equality. As a theory of contract law, it focuses on the parties’ interpersonal interactions rather than on the justice of the social order as a whole.Normatively, the article claims that the rules governing cases where one party experiences harsh circumstances or vulnerability during the bargaining process or operates under significant informational disadvantage (...) must be guided by the commitment to relational justice, that is, to reciprocal respect for self-determination and substantive equality. Jurisprudentially, the article studies the systemic difficulties hindering the translation of these normative prescriptions into legal language and analyzes how they affect the form assumed by the law of precontractual justice and its institutional pedigree. (shrink)

In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights is, to an important extent, (...) a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law. (shrink)

This study uses a relational work design perspective to explore substitutes for leadership behaviors that promote team meaningfulness and performance. We propose that team task interdependence, a structural feature facilitating interaction among team members, can be a substitute for the contributions of empowering leadership. Data were collected from 47 R&D and technology implementation teams across three organizations in a cross-sectional field study. The results revealed that high task interdependence attenuated the contributions of empowering leadership concerning team meaningfulness and, indirectly, to (...) team performance. These findings highlight that the importance of leaders as generators of team meaningfulness is contingent on team relational work design. (shrink)

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given rise (...) to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction. (shrink)

The two questions I seek to address in these pages are what is public property and why does it matter. Public property, like property more generally, is a powerful legal arrangement of allocating control and use rights with respect to resources. Unlike private property, public property does not establish normative powers with which private individuals can shape their practical affairs in and around social spheres such as housing, work, commerce, and worship. Rather, its distinctive value lies in extending autonomous agency (...) to the construction of public spaces and resources. Public property places individuals in a position of collective self-government, manifested in the following two particular ways: first, expressing the ideas and commitments that the political community as a whole affirms; and second, exerting control over the construction and direction of the resources that make up the environment they occupy. (shrink)

This article argues that contemporary accounts of justice miss a relational dimension of justice, which focuses on the terms private individuals’ interactions must meet for them to constitute relationships among equal, self-determining persons. The article develops the argument that the justice requirement to respect others as substantively free and equal individuals can sometimes be adequately discharged only if the relevant private persons are held responsible for its realization. It further elaborates the normative framework of relational justice to explain the generic (...) structure, content, and scope of such a requirement. (shrink)

The most powerful response to growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of an owner's rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies—rather than merely explanatory gaps—that render it unable to overcome the specter of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and nonowners. In place of the (...) right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a nonowner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about the point of ownership rights and responsibilities. (shrink)

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay, we argue, negatively, that the prevailing understanding of private property cannot plausibly meet this demanding standard; and develop, affirmatively, a liberal conception which has a much better prospect of meeting property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy and to their relational equality. (...) The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist. Our account generates important implications, both domestic and transnational. Domestically, it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to non-owners’ claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone have the unusual authority typical of full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions brings into question the adequacy of the current state of the law, according to which these interactions are mainly governed by choice-of-law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities. (shrink)

Assumption of risk - the notion that one cannot complain about a harmful state to which one has willingly exposed oneself - figures prominently in our extra-legal lived experience. In spite of its deep roots in our common-sense morality, the tort doctrine of assumption of risk has long been discredited by many leading tort scholars, restatement reporters, courts, and legislatures. In recent years, however, growing concerns about junk food consumption, and about obesity more generally, have given rise to considerations that (...) are traditionally associated with the principles underlying the doctrine of assumption of risk. Against this backdrop, I shall advance two claims: one negative and the other affirmative. The negative claim is that the major objections to the doctrine of assumption of risk are either misplaced or overblown. And affirmatively, I argue that this doctrine can provide an illuminating framework with which to address pressing social concerns such as the one associated with junk food’s harmful side-effects. (shrink)

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability (...) under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a-moral (and, with regard to some interpretations, anti-moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles. (shrink)

Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and (...) democracy. Indeed, a proper account of the legitimacy of the democratic process. I argue, dissolves the mystery surrounding freedom of religion, and thus allows for an adequate justification of this principle. The thesis of this paper is that freedom of religion is a remedy that redresses the exclusion of certain religious arguments from the democratic process. The redress is grounded in a republican concern for political self-determination while exclusion is prescribed by a liberal ideal of political legitimation. (shrink)

Contemporary discussions of private law theory have sought to divine the deep structure and content of private law by reference to two key distinctions. First, the distinction between private and criminal law has been utilized to flesh out the distinctively bipolar structure of private law. Second, the distinction between formal and distributive equality has served to highlight the special terms of interaction established in private law. In these pages, I take up the former distinction, arguing that its theoretical significance is (...) overdrawn. I argue that it does not succeed in identifying private law’s precise nature. (shrink)

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two non-instrumentalist conceptions of tort law appear to dominate how we are supposed to understand and discharge these tasks. One conception takes tort law to be the law of wrongs, whereas the other conception identifies tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law (...) does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be identifying the value of the conflict to which it responds (or which it shapes). In fact, there are three types of conflicts: inherently valuable, tolerably valuable, and valueless. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to nonconsensual access to the workplace by organizers and by workers. (shrink)

Why Law Matters argues that public institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value. Examining the value of rights, public institutions, and constitutional review, the book criticises instrumentalist approaches in political theory, claiming they fail to account for their enduring appeal.

AI-based algorithms are used extensively by public institutions. Thus, for instance, AI algorithms have been used in making decisions concerning punishment providing welfare payments, making decisions concerning parole, and many other tasks which have traditionally been assigned to public officials and/or public entities. We develop a novel argument against the use of AI algorithms, in particular with respect to decisions made by public officials and public entities. We argue that decisions made by AI algorithms cannot count as public decisions, namely (...) decisions that are made in the name of citizens and that this fact should be taken into consideration when utilizing AI to replace public officials. (shrink)

This chapter contains section titled: Introduction The Nature of Rights: Logic, Substance, and Strength Rights and Their Role in Moral Theory Conclusion References.

The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also (...) to criminalize such violations. Further, the duty to criminalize ought to be constitutionally entrenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live ‘at the mercy’ of others. In the absence of a constitutional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens’ rights are ‘at the mercy of others’. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds. (shrink)

Why Law Matters examines various legal and political institutions and procedures and argues that the desirability of these institutions and procedures is not contingent and does not hinge on the prospects that these institutions are conducive to the realization of valuable ends. Instead, various legal institutions and legal procedures that are often perceived as contingent means to facilitate the realization of valuable ends matter as such.

This paper investigates whether Palestinians have an interest in return rather than a mere interest in settling within the territory of a state that provides them with civil rights and economic opportunities. The paper establishes the following three claims. First, Palestinians have some interests in return to the territory of Palestine-Israel. Second, many of these interests can be satisfied by establishing an independent Palestinian state in part of historical Palestine. Third, some of these interests are similar to the interests that (...) may justify an analogous right of return for Jews to the same land. (shrink)

Contrary to what Cordelli argues, the relationship between Kantian legitimacy and democratic decision-making is contingent rather than necessary. This paper counters the connection between Kantian legitimacy and democracy in three ways: by arguing that democratic authorization is (i) not necessary, (ii) not sufficient, and indeed may be (iii) detrimental to, legitimate governance.

This paper provides an economic justification for the exemption from liability for omissions in torts and for the exceptions to this exemption. It interprets the differential treatment of acts and omissions under tort law as a proxy for a more fundamental distinction between harms caused by multiple injurers, where each one can single-handedly prevent the harm, and harms caused by a single injurer. Since the overall cost to which a group of injurers is exposed is constant, attributing liability to many (...) injurers reduces the part each has to pay and, consequently, reduces each one’s incentives to take precautions. Broad exemption from liability for omissions is a way of carving a simple, practical rule to distinguish between the typical cases in which an agent can be easily selected and provided with sufficient incentives and cases in which there is a serious problem of dilution of liability. The exceptions to the rule exempting from liability for omissions are explained in terms of efficiency. The imposition of liability for omissions depends on the ability to identify a salient agent, i.e., to single out one or few liable agents and differentiate their role from that of others. Tort law designs three types of "salience rules." It either creates salience directly, or it can exploit salience created "naturally," or it can induce injurers to create salience voluntarily. (shrink)

The standard opinion is that the force of the constitution hinges on the fact that it is willingly endorsed by the people or, at least representative of the people. This Article challenges this view. More specifically, I differentiate between two types of legitimation: representational legitimation and non-representational or reason-based legitimation. While representational legitimation rests on the fact that the constitution is representative of who the people are or what they want, reason-based constitutions are based on the judgement that the constitution (...) is just or, at least grounded in reason. I also show that some of the puzzles in constitutional theory can be resolved by acknowledging the significance of the latter type of legitimation. For instance, I illustrate that constitutions that were not adopted freely by the nations and could not have been characterized as representative of the people such as the German Constitution can still be legitimate. To put it provocatively: the legitimation of a constitution need not rest on the conviction that it represents the people whom it governs; it may simply rest on the belief that it is a good or just constitution. Representational legitimacy is only one form of legitimacy but not the only one. (shrink)

Journal Name: The Law & Ethics of Human Rights Issue: Ahead of print.

This book is a collection consisting of an introduction and nine essays that explore foundational aspects of criminal law. As the introduction makes clear, the book is eclectic and the essays can be classified under three main headings. The first group of essays explores the political constitution of criminal law as part of the institutional structure of the state. The second group of essays investigates the question of the authority of criminal law and its potential to create reasons for action. (...) The third group deals with transnational and international criminal law. The essays are primarily normative but they also contain historical and sociological discussions. The book will therefore be of interest to criminal lawyers, political and legal philosophers, political scientists and policy-makers. I will review separately some of the essays.Nicola Lacey’s essay, “What Constitutes Criminal Law?,” touches upon the fundamental question of criminal law: the question of legitimation. Lacey ap .. (shrink)

This Paper explores the justifications for regulating modesty-related practices in liberal societies and uses two examples of modesty-related practices— the practice of wearing the hijab and the practice of separating men and women in buses—in order to demonstrate that modesty-related practices often rest on different rationales. Some of these rationales are oppressive and discriminatory while other are benign or even autonomy-enhancing. The multiplicity of meanings associated with modesty-related practices is a challenge to the policy maker. The Paper proposes that sometimes (...) it is possible to transform the social meaning of modesty-related practices without transforming the practices themselves. (shrink)

In his admirable book Dimensions of Dignity, 1 Jacob Weinrib develops a comprehensive dignity-based theory of public law. Weinrib's ‘unified theory’ of public law rests on dignity; dignity, under h...

The most compelling defense of the standard of reasonable care in negligence law casts itself in terms of equality. This commitment to equality may paradoxically turn out to be flatly inegalitarian. This is because it discriminates against the less capable through ignoring their deficient capabilities (and so against their chances of meeting the standard of reasonable care successfully). A promising, though still unfamiliar, way to revive the egalitarian aspirations of reasonable care would be to show that imposing the standard of (...) reasonable care even on the less competent expresses, rather than inhibits, a true devotion to equality. I seek to make this showing, and thus to reclaim for this standard of care its egalitarian foundations more adequately than has so far been proposed. (shrink)

Legal philosophers often ask whether a person has a reason to obey the law simply because it is the law. We ask the contrary question: does a person have a reason to disobey the law simply because it is the law? Many philosophers who have considered the question of disobedience have focused on injustice; others have defended disobedience on libertarian or anarchist grounds. In contrast, we argue that there is a content-independent reason to disobey the law even when it is (...) not unjust, illegitimate, or otherwise undesirable. Legal philosophers generally agree that law claims peremptory authority, but they also generally agree that any duty to obey the law is substantially more limited. We argue that insofar as the law makes inflated claims to authority, it generates a content-independent reason to disobey. This anti-authoritarian principle is grounded in the virtue of clearly communicating one’s political commitments to others within a democratic society. By disobeying, one communicates one’s conviction that the law makes inflated claims to authority. We show how our account of disobedience as such is distinct from more familiar theories of anarchism and civil disobedience and argue that it is applicable whether one lives under conditions of justice or injustice. (shrink)

This is an introduction to the special issue on criminal law theory.

There are many books on legal theory that are devoted to describing different accounts of law, criticising some theories, supporting others, and at times even developing new ones. Typically, howeve...

This paper investigates the accusation that judicial review is undemocratic. It argues that the alleged tension between judicial review and democracy fails to account for the fact that the content of rights and their scope depends on societal convictions and moral judgments of the public. Such dependence suggests that rights-based judicial review can be described as an alternative form of democratic participation.

Alon Harel defines extreme cases as those in which the only way to avert a destructive threat is to harm innocent people. He rejects traditional consequentialist and non-consequentialist approaches because of the type of reasoning they both employ. I interpret Harel as making two central objections to this form of reasoning. First, traditional approaches require comparisons to be made about the value of human life. Second, decisions in extreme cases, even if permissible, should not be made under (...) the guidance of rules. I argue that these objections, though prima facie plausible, are on reflection relatively weak, and I offer instead a more moderate argument that vindicates Harel’s general thesis that deliberation is morally relevant. More specifically, I argue that whether one acts on certain conditions affects both the moral permissibility of one’s actions and the duties owed by others. (shrink)