Law and Philosophy

Acknowledgment of Reviewers

Book Review

Book Review

Acceptability, Impartiality, and Peremptory Norms of General International Law Abstract Peremptory norms of general international law (jus cogens) are universally binding prohibitions that override any consideration for non-compliance (e.g., genocide and slavery). The question is how nonconsensual norms emerge from a consensual international legal order. It appears that either the peremptoriness of jus cogens renders consent superfluous to the norm’s binding force or consent divests jus cogens of its peremptory status. The goal of this paper is to resolve the dilemma by explaining why jus cogens is exempt from the general requirement of consent that binds states to the rules of international law. The paper provides an impartiality-based account of enforcement that explains why a state’s refusal to give consent to jus cogens may be overridden in a consensual legal order.

Justice for Foxes Abstract Ronald Dworkin maintains that value is unitary, in the sense that different values do not conflict. This article resists this ‘hedgehog’ view with reference to the values of equality and utility. These appear to yield conflicting prescriptions in cases where one possible distribution gives different individuals the same amount of advantage, and the other contains an unequal distribution of a greater overall amount of advantage. Hedgehogs might respond to such a case in two ways. First, they might claim that equality and utility are not truly in conflict. However, this claim seems implausible on our ordinary concepts of these values, and Dworkin does not provide grounds for revising our concepts. Second, they might deny that one of these values – utility – is a genuine value. However, one of the two aspects of Dworkin’s fundamental principle of equal concern appears to be supportive of utility, and he offers no good arguments for his preferred strategy of accommodating this aspect of equal concern within the value of equality. Furthermore, the alternative ‘fox’ view, which recognizes equality and utility as conflicting values, each accommodating one aspect of equal concern, has the advantage that it stays truer to familiar moral concepts.

The Expressivist Theory of Punishment Defended Abstract Expressivist theories of punishment received largely favorable treatment in the 1980s and 1990s. Perhaps predictably, the 2000s saw a slew of critical rejections of the view. It is now becoming evident that, while several objections to expressivism have found their way into print, three concerns are proving particularly popular. So the time is right for a big picture assessment. What follows is an attempt to show that these three dominant objections are not decisive reasons to give up the most plausible forms of the view. Moreover, in addition to the three common objections, expressivism has an acknowledged question mark concerning whether the value of punitive expression outweighs its drawbacks. Here I also map out some promising avenues that the expressivist can take to answer this question.

Religion in the Law: The Disaggregation Approach Abstract Should religion be singled out in the law? This Article evaluates two influential theories of freedom of religion in political theory, before introducing an alternative one. The first approach, the Substitution approach, argues that freedom of religion can be adequately expressed by a substitute category: typically, freedom of conscience. The second, the Proxy approach, argues that the notion of religion should be upheld in the law, albeit as a proxy for a range of different goods. After showing that neither approach adequately meets crucial desiderata for an inclusive theory of religious freedom, the Article sets out the Disaggregation approach and defends against the alternatives.

The Moral Basis of Religious Exemptions Abstract Justifying religious exemptions is a complicated matter. Citizens ask to not be subject to laws that everyone else must follow, raising worries about equal treatment. They ask to be exempted on a religious basis, a basis that secular citizens do not share, raising worries about the equal treatment of secular and religious citizens. And they ask governmental structures to create exceptions in the government’s own laws, raising worries about procedural fairness and stability. We nonetheless think some religious exemptions are appropriate, and in some cases, that exemptions are morally required. So how are we to determine when religious exemptions are justified? This article employs a public reason framework to provide an answer. I show how to publicly justify religious exemptions. My thesis is that a citizen merits a religious exemption under four conditions: (a) if she has sufficient intelligible reason to oppose the law, (b) if the law imposes unique and substantial burdens on the integrity of those exempted that are not off-set by comparable benefits, (c) if the large majority of citizens have sufficient reason to endorse the law, and (d) if the exempted group does not impose significant costs on other parties that require redress. If these conditions are met, then legislative and/or judicial bodies should carve out an exemption for those requesting them.

Non-Identity: Solving the Waiver Problem for Future People’s Rights Abstract In a familiar interpretation, the Non-Identity Problem (NIP) claims that persons whose existence depends on a seemingly harmful action cannot in fact be harmed through such an action. It is often objected that the persons in question can nevertheless be wronged through a violation of their rights. However, this objection seems to fail because these persons would readily waive any violated right in order to come into existence. The present article will analyze this Waiver Counter Argument in detail and show why it does not succeed. First, it is necessary to distinguish between a prospective and a retrospective waiver scenario. In the prospective scenario an imagined person (or a proxy) must consider whether she wants to waive a right in order to come into existence. In the retrospective scenario a person is asked whether she would prefer a wronged existence to never having been born. In both scenarios the conditions of a legitimate waiver of rights are not met, but for different reasons. On this basis, an argument against NIP can be developed.

What the Epistemic Account of Vagueness Means for Legal Interpretation Abstract This paper explores what the epistemic account of vagueness (“epistemicism”) means for theories of legal interpretation. The thesis of epistemicism is that vague statements are true or false even though it is impossible to know which. I argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: (1) Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, (2) interpretative reasoning within the law must construe vague statements as an epistemic phenomenon, and (3) epistemicism must be expanded to include normative considerations in order to account for legal theories that are consistent with the first two conditions. The first two conditions are internal to a particular theory of legal interpretation, while the third condition is external to a particular theory of legal interpretation. My conclusion shows that there are legal theories that are internally consistent with the fundamental features of epistemicism. However, within the domain of law—and specifically in the case of legal theories that are internally consistent with epistemicism—I show that vagueness cannot be explained simply by our ignorance of the meaning and use of vague expressions. Rather, epistemicism must also account for ignorance of the requisite normative considerations in legal theories with which it is otherwise consistent.