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.