Law and Philosophy

How can hard determinism deal with the need to punish, when coupled with the obligation to be just? I argue that even though hard determinists might find it morally permissible to incarcerate wrongdoers apart from lawful society, they are committed to the punishment’s taking a very different form from common practice in contemporary Western societies. Hard determinists are in fact committed to what I will call funishment, instead of punishment. But, by its nature funishment is a practical reductio of hard determinism: it makes implementing hard determinism impossible to contemplate. Indeed, the social practices that hard determinism requires turn out to be morally bad even according to hard determinism itself. I conclude by briefly reflecting upon the implications.

In “The Right to Threaten and the Right to Punish,” Warren Quinn justifies punishment on the ground that it can be derived from the rights of persons to protect themselves against crime. Quinn, however, denies that a right of self-protection justifies the punishment of an aggressor solely on the ground that such punishment deters others from harming the victim of that aggression or others. He believes that punishment so justified would constitute a morally objectionable instance of using the punished individual as a means. Contrary to Quinn, I argue that (1) an individual can, on the very ground of a right to self-protection that Quinn ultimately relies upon to justify punishment, justify the punishment of an individual as a means of deterring others from committing crimes; and that (2) an individual or individuals (including state officials) can, on the ground of vindicating the right of protection that others possess, justify the punishment of an individual as a means of deterring others from committing crimes.

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism with distributive rather than corrective justice. Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former.

Thus, there is a compelling policy argument as well as a suggestive constitutional argument that the practice of selling parental rights in general, and in particular the practice of commercial surrogacy, should not be permitted. These arguments favor the approach adopted in New York State as opposed to any more latitudinarian approach that would permit commercial surrogacy. Clearly, if the payment of money in exchange for parental rights should be prohibited, then we have a strong basis on which to reject the intentionalist theory, along with any other theory tht would link the parentage of a child with the payment of money. This conclusion is in no way undermined by the various arguments recited in part V above that favor the intentionalist theory since, as we have seen, these arguments are flawed.

This essay addresses Rawls’ claim in Political Liberalism that the U.S. Supreme Court would have power to overturn an amendment repealing the First Amendment. I argue that the argument succeeds if one conceives of public reason as a theory of constitutional lawmaking. This theory is founded on Rawls’ unique contributions to the concept of public reason: the criterion of reciprocity, and the content, given by a family of reasonable conceptions of political justice. This conception of public reason imports substantive moral commitments into democratic theory, and thereby limits what may count as law. This essay reconstructs Rawls’ reasoning by developing a theory of public reason as law higher even than constitutional law, and then to use this theory to analyze and critique other theories, such as Ackerman’s constitutional moment.

In this paper I describe some difficulties raised by the so-called thesis of the protective perimeter of liberties (ToPP). According to this thesis, a privilege does not necessarily involve a claim to non-interference, and a claim to non-interference does not necessarily presuppose a privilege. I argue that the first part of this thesis relies on a misunderstanding of ‘interference with a liberty’ (a misunderstanding that surfaces in the examples to which the thesis is applied) and that the second part of this thesis contains a misleading description of what is involved in having a claim to non-interference.