Sophia Moreau (Toronto)
13 September 2021
This paper (a chapter in a forthcoming Liber Amicorum for John) lays out and critically engages with a number of Gardner’s most original contributions to the growing field of discrimination theory. Over the years, and especially in his most recent writings, Gardner has questioned a number of commonly held views about discrimination —for instance, that the badness of discrimination lies solely in its wrongness; that indirect discrimination is something quite distinct from direct discrimination, and wrong for different reasons; and, perhaps most boldly, that when discrimination is wrong, it is wrong because we choose to prohibit it, not because it is a malum in se. In this paper, I explain why his contributions are so original and why it is particularly important that we take seriously his suggestion that indirect and direct discrimination are not wrong for different reasons. But I argue that his reasons-based analysis of discrimination does not enable us to make sense of all of the morally concerning features of wrongful or bad discrimination, and in particular can hinder us from recognizing what is most deeply troubling about certain kinds of indirect discrimination. I also suggest that something would be lost if we collectively accepted that discrimination was a mere malum prohibitum.
Felipe Jiménez (USC)
5 July 2021
According to the one-system view, law is a branch of political morality. This paper assumes this claim as true and interrogates its implications for the concept of law that legal participants ought to adopt. As I argue, there is a relatively direct path from the one-system view to an argument that prescribes the positivist concept of law on normative grounds. Even if jurisprudential questions ultimately depend on moral considerations, the latter might still weigh in favor of a version of positivism. The positivist view, I will argue, is more consistent with reasonable disagreement and democratic authority than non-positivist views, and it offers a clearer view of the situations under which law should be resisted and reformed. Positivism is also more consistent with Dworkinian integrity than nonpositivism. We ought to adopt the positivist concept of law, precisely because of the moral considerations that the one-system view sees as continuous with legal theory.
Crescente Molina (Oxford)
Promises and Commitments
7 June 2021
When we promise, we voluntarily impose an obligation on ourselves. What is more, we grant others exclusive control over such obligation. Thus far, authors have assumed that these facts about promising must be true for all the cases in which we assume obligations towards others at will: (i) the voluntary imposition of obligations on ourselves must entail (ii) granting the obligee exclusive deontic control over the obligatory matter. Yet this is not true. We can do (i) without (ii). This happens when we create what I call commitments. This essay develops the notion of a commitment. I contend that commitments shape the structure of important moral phenomena such as some of our loyalty obligations, and that they shed light on the justification and scope of contract law. Furthermore, I argue that the existence of commitments invites us to rethink the way we understand the structure of moral obligations.
Mihailis Diamantis (Iowa)
Discretion in Blaming
3 May 2021
Philosophers of law typically utilize concepts and arguments from philosophy to enhance legal understanding. This Paper reverses that distinguished trend, drawing on legal practice to improve philosophy. It seeks inspiration from judicial sentencing discretion to introduce the novel philosophical thesis that ordinary people have discretion in deciding how to blame each other.
Blame sounds like a simple enough concept. It is the characteristic response through which people express negative judgments and condemnation of wrongdoing. Yet philosophers have struggled for millennia to understand blame and how severely it is appropriate to blame any given wrongdoer. The philosophical quandary has only deepened in recent decades as a paradox about blame—“the problem of moral luck”—has come to salience. Most philosophers agree that we have full control over how morally culpable we are and that we do not have full control over how much blame we deserve. For example, two people who drive home drunk are, ceteris paribus, equally culpable. However, luck may intervene. If one has the misfortune of striking a pedestrian on the way, it is appropriate to blame him more. The paradox of reconciling equal levels of culpability with unequal levels of appropriate blame stands unresolved.
The law can help. One close legal analogue to blame is criminal sentencing. The many problems that plague philosophers of blame would sound foreign to sentencing judges. This Paper identifies why. Philosophers of blame seem unknowingly and almost universally to assume a hidden, false premise. While sentencing judges have wide discretion, philosophers implicitly assume a much more rigid picture of blame. They seem to think that the facts about a wrongful act fix a single appropriate severity of blame in response. Abandoning that premise would mean acknowledging that philosophy of blame cannot answer all questions . . . after a point, people have discretion to choose how to respond to wrongdoing. However, by acknowledging that we, like sentencing judges, have discretion in how we respond to wrong, philosophers could develop a more nuanced, intuitively-appealing, and paradox free account of justified blame.
David Plunkett (Dartmouth College) & Daniel Wodak (University of Pennsylvania)
The Disunity of Legal Reality
12 April 2021
Take “legal reality” to refer to the part of reality that legal thought and talk is distinctively about. This includes, plausibly, things such as the following: legal institutions, legal obligations, and legal norms. In this paper, we explore the thesis that legal reality might be disunified. The basic kind of disunity we are interested in is this: an important metaphysical thesis (e.g., legal positivism, or something parallel to it) is true of one part of legal reality (e.g., legal institutions) but not another (e.g., legal norms). We explore a number of different arguments that, collectively, suggest we should take seriously the possibility that legal reality is indeed (at least relatively) disunified. One argument starts from the heterogeneity of different entities that are part of legal reality, given a range of plausible understandings of the boundaries of “legal reality”. Another argument stems from the fact that what it is to be part of “legal reality” is tied to the issue of what legal thought and talk are distinctively about. We put forward linguistic observations that suggest there might be a significant degree of variation within legal thought and talk, such that some of this thought and talk refers to things of which a given metaphysical thesis (e.g., legal positivism) is true but other parts refers to parts of reality where the same thesis (or a parallel one) fails. We argue that taking the possibility of the disunity of legal reality seriously has important upshots. First, it suggests potentially fruitful ways of combining strands of the positivist and antipositivist traditions in general jurisprudence. Second, it suggests potentially fruitful ways of combining insights from different parts of legal theory, e.g., critical legal theory and general jurisprudence. Finally, it helps us better diagnose bad forms of argument in legal theory, including some in the debate over legal positivism.
Kimberly Kessler Ferzan (University of Pennsylvania)
1 March 2021
In many respects the #MeToo movement was a resounding success. In the span of a few months, powerful public figures were held to account for past acts of sexual violence and predation. While in some respects, saying, “me too” indicated that far more women were victims of sexual abuse writ large, often, the “me too” was with respect to a single perpetrator. That is, what caused many heads to roll was not that a woman accused someone, but that many women accused someone. Without discrediting all the good that has been done by the #MeToo movement, this paper explores the potential evidentiary impacts of the narratives that have been created. Specifically, with respect to accused perpetrators, will we be too eager to allow evidence of one bad act to make it likely that someone committed another? Will “once a rapist, always a rapist” be our mantra? And does the empirical evidence truly support this? Or should our understanding been cabined into particular sorts of cases where individuals can exploit opportunities due to the positions which they occupy? Equally troubling, on the other side of the coin, is whether this will disvalue women’s testimony. One might worry that what we have learned to do is to believe these women but not to believe any individual woman. We have never required that a bank robber had to rob a second bank before we determined he robbed the first one, and yet, what Cosby, Weinstein, and others have led us to expect is that in instances of sexual violence, we will find a second crime so that we can believe the victim that the first crime was committed.
David Enoch (Hebrew University of Jerusalem)
Autonomy as Non-Alienation, Autonomy as Sovereignty, and Politics
1 February 2021
An autonomous life – that is, a life which is shaped, to a considerable extent, by the values and choices of the person whose life it is – is, other things being equal, for this reason better than a life that lacks such self-directedness. But we should distinguish between autonomy understood as a harmony between one’s life and one’s deep commitments – which I call non-alienation – and autonomy understood as having the final word on the relevant issue – which I call sovereignty. Both non-alienation and sovereignty are of value, but what is the relation between them? I argue that non-alienation is the more fundamental value, but that sovereignty nevertheless achieves some independence from the value of non-alienation that ultimately grounds it. I also argue that when it comes to politics, it’s sovereignty rather than non-alienation that usually takes center stage. And I show – in a preliminary way – how the distinction between non-alienation and sovereignty and the relations between them is productive in thinking about nudging and about false consciousness.
Laura Valentini (King’s College London)
Normative Powers and Social Practices
18 January 2021
Normative powers have been the subject of complex debates in philosophy. There are rich literatures on, e.g., consent, authority, promising, and forgiveness, to name a few. Yet, there is relatively little discussion of normative powers as such, as a general category. My aim in this paper is to fill this gap. Specifically, the paper’s intended contribution is twofold: conceptual (concerning the definition of such powers) and ontological (concerning the existence conditions of such powers). On the conceptual side, I offer a general definition of normative powers—be they legal, conventional, or moral—one that I believe better captures the relevant phenomenon than alternative definitions found in the literature. On the ontological side, I argue that normative powers, including moral powers, cannot exist in the absence of social practices. Social practices conferring them on individuals are necessary existence conditions of those powers.
Julian Jonker (University of Pennsylvania)
Unconscionability, Vulnerability, and Autonomy
7 December 2020
Contract law’s doctrine of unconscionability is difficult to reconcile with a view of contract as autonomy-enhancing. The ability of a court to withhold contract enforcement seems at odds with respect for the choices of the contracting parties, and gives rise to the charge of paternalism. Indeed, unconscionability is typically defended as an external constraint upon contract that relies upon some value other than autonomy. This is in part because the moral charge of exploitation that underwrites most unconscionability claims is not well understood. I advance a proceduralist account of exploitation that explains the procedural emphasis of unconscionability doctrine. This proceduralist account does not implausibly claim that exploitation undermines consent or voluntariness, but does focus on the way in which the plaintiff’s options are narrowed before or during bargaining. In so doing, the account vindicates unconscionability doctrine as a natural part of an autonomy-enhancing contract law.
Stephen Bero (University of Surrey)
Mercy in Tort
2 November 2020
Tort law systematically disadvantages the merciful. Admittedly this sounds odd, like saying that the rules of boxing disadvantage the merciful. But closer consideration reveals that tort law’s treatment of the merciful is a source of real unfairness and perversity. This is one dimension of a significant but overlooked problem of mercy in tort. This problem of mercy in tort is itself an illustration of a broader, fundamental problem that needs particularly to be reckoned with now, amid a wave of work emphasising how tort law advances relational values like equality and mutual accountability. The problem of mercy exposes a neglected downside: even if my equal standing is vindicated when I have institutional means to hold you accountable, other relational values — mercy, forgiveness, solidarity— are burdened when I must hold you accountable or else bear the cost of your mistake. We should avoid putting tort victims in this quandary if we can – and, at least in principle, we can.
Ezequiel Monti (Universidad Torcuato di Tella)
Triggering Reason-Giving and Exclusive Legal Positivism
5 October 2020
David Enoch has recently defended exclusive legal positivism against the charge that it cannot account for the normativity of law. In a nutshell, the argument is that reasons can only be given by way of triggering and that just about anything can trigger reasons, including those social facts that, according to exclusive legal positivism, exclusively determine the content of law. Here I turn this argument on its head. I shall argue that, if it were true that sources of law can give reasons only by triggering, then that would be a strong reason to adopt a non-positivist view about the grounds of law. The only way to escape this conclusion is to reject legal rationalism, that is, the claim that having a legal obligation to f implies having a reason to f. But we should not abandon legal rationalism. Thus, if one wants to remain an exclusive legal positivist, one should reject the triggering only hypothesis.
Mitchell Berman (University of Pennsylvania)
Principled Positivism: How Practices Make Principles, and How Principles Make Rules
14 September 2020
The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This paper offers a novel answer. In brief: legal practices ground legal principles, and legal principles ground legal rules. I call this two-level account of the determination of legal content “principled positivism.” It differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing on concrete legal examples, the paper shows how the version of positivism that it introduces betters Hart’s in meeting the most formidable challenges to positivism that Dworkin marshaled.
Kimberley Brownlee (University of British Columbia)
What a Home Does, co-authored with David Jenkins
3 August 2020
Analytic philosophy has largely neglected the topic of homelessness. The few notable exceptions, including work by Jeremy Waldron and Christopher Essert, focus on our interests in shelter, housing, and property rights, but ignore the key social functions that a home performs as a place in which we are welcomed, accepted, and respected. This paper identifies a ladder of home-related concepts which begins with the minimal notion of temporary shelter, then moves to persistent shelter and housing, and finally to the rich notion of a home which focuses on meeting our social needs including, specifically, our needs to belong and to have meaningful control over our social environment. This concept-ladder enables us to distinguish the shelterless from the sheltered; the unhoused from the housed; and the unhomed from the homed. It also enables us to decouple the concept of a home from property rights, which reveals potential complications in people’s living arrangements. For instance, a person could be sheltered but unhoused, housed but homeless, or, indeed, unhoused but homed. We show that we should reserve the concept of home to capture the rich idea of a place of belonging in which our core social needs are met.
Victor Tadros (University of Warwick)
Fairness, Avoidability and Sanctions
6 July 2020
A familiar view of responsibility is that a person is responsible, in a certain sense, for conduct if that conduct is attributable to her. However, it might be argued, the fact that wrongful conduct can be attributed to the wrongdoer is insufficient to make the infliction of sanctions for that conduct fair. Something more is required – something to do with the opportunity to avoid either the sanctions, or the conduct on which the sanctions are based. I argue that the fairness of the imposition of a sanction on a person does not depend on the opportunity that the person had to avoid having that sanction inflicted on her. I also raise doubts about the idea that the infliction of sanctions is made fair by a person having a compatibilist-friendly opportunity to avoid the basis of those sanctions being inflicted on the person. Determinism thus continues to pose serious challenges for the fair infliction of sanctions, and indeterminism doesn’t help. We need less conventional theories of the justification of sanctions to meet these challenges.