This essay looks at the contemporary just war theory literature on preventive war that has emerged largely in reaction to the US invasion of Iraq. Recent sanctions on Iran and the debate over its nuclear program now suggest the usefulness of a forward looking perspective on preventive strikes, rather than the retroactive analyses offered thus far primarily with reference to Iraq. With Iran closely in mind, I address the various arguments for and against preventive war indicating throughout that the various principled objections to early military action can be overcome in this case. Many of the crucial concrete questions regarding costs and benefits need to be settled in practice, rather than in the realm of political theory. Ultimately, the discussion suggests that Iran is a legitimate candidate for early military action aimed to prevent it from developing nuclear weapons. I argue that in principle, subject to credible intelligence information and requirements of proportionality, a unilateral Israeli strike against Iran will be justifiable, both morally and legally, as self-defense.

No one has ever adequately described, either in poetry or in private conversation, what the very presence of justice or injustice in his soul does to a man, even if it remains hidden from gods and man....

Wittgenstein seeks to inoculate us against the lure of metaphors. The conundrums of philosophy are, he implies, often the misbegotten offspring of abused metaphors. How many rooms are needed to house the “furniture of our mind”? With what key do others gain access to my “private” thoughts and feelings?

Jurisprudence has its own syllabus of philosophical puzzles. One of the hardiest is the issue of judicial license and judicial standards. This issue has special fascination for American legal theorists because of the pivotal role played by the Supreme Court in exercising the power of judicial review by interpreting the Constitution. American theorists have taken for granted, and other theorists have seemed to acquiesce in this assumption, that to understand the nature of law is to understand how appellate judges find and/or make law.

When Legal Realism first appeared in American jurisprudential thought in the 1920’s and early 1930’s, it was frequently misunderstood as an attack on the integrity and truthfulness of the American judiciary. After all, wasn’t it a central tenet of Legal Realism that judges did not decide cases by applying preexisting and authoritative legal rules, but merely decided cases in whichever way they thought was best? Such considerations led to the derogatory restatement of the Realist position as holding that the law is determined by “whatever the judge ate for breakfast”.

Democratic theory tends to proceed on the assumption that law requires democratic legitimation because it is coercive. However, the claim that law requires democratic legitimation is distinct from claims about the nature of law. This paper takes issue with the notion that law is coercive by an exploration of three distinct understandings of the nature of law: the state-based conception of law, law as the rules of institutionalized normative systems, and law as social norms. Drawing on insights from legal and democratic theory, the paper defends the view that the ‘law’ to which democratic claims apply are the rules of conduct of institutionalized normative systems. Since rules that belong to such systems are found in associations beyond or below the level of the state, the scope of democratic participation is significantly wider than is usually recognized.

Developments in artificial intelligence and robotics promise increased interaction between humans and autonomous machines, presenting novel risks of accidental harm to individuals and property.1 This essay situates the problem of autonomous-machine-caused harm within the doctrinal and theoretical framework of tort law, conceived of as a practice of corrective justice. The possibility of autonomous-machine-caused harm generates fresh doctrinal and theoretical issues for assigning tort liability. Due to machine-learning capabilities, harmful effects of autonomous machines may be untraceable to tortious actions of designers, manufacturers or users.2 As a result, traditional tort doctrine—framed by conditions of foreseeability and proximate causation—would not ground liability.3 Without recourse to compensation, faultless victims bear the accident costs of autonomous machines. This doctrinal outcome reflects possible incompatibility between tort’s theoretical structure of corrective justice and accidents involving autonomous machines. As a practice of corrective justice, tort liability draws a normative link between particular defendants and plaintiffs, as doers and sufferers of the same tortious harm, grounding defendants’ agent-specific obligations to repair the harm. Where accidents are caused by autonomous machines, the argument goes, the essential link between defendants and plaintiffs is severed; since resulting harm is not legally attributable to the human agency of designers, manufacturers or users, victims have no remedy in tort.

In a recent article2 I examined the nature of private law offices, and here I extend that analysis to consider the trustee-beneficiary relationship where the trust is of a kind that Lionel Smith has called a “massively discretionary trust.”3 After considering some of the problematic legal features of such trusts, I shall probe the morally problematic features that these trusts present.

Of all the various aspects of legal positivism, it is those bearing upon a theory of adjudication which have prompted its critics’ fiercest attacks. Legal positivism is taken to be committed to the thesis that a distinction exists between (so called) ‘easy’ cases—where the law can be identified and applied straightforwardly—and ‘hard’ cases—where the issue is not determined by the existing legal standards. Most critics are united in their rejection of this dichotomy, but divided by the two main routes they follow. The more familiar one, first outlined by Professor R.M. Dworkin, sets out to deny that hard cases are not regulated by legal standards. The other objection, and the one I wish to consider here, strives to show that the distinction itself is illusory since in all relevant respects, there are no easy cases as the positivist presumes.

We love our children. We really do. Yet we also find ourselves happy when they finally fall asleep, or when they go back to school at the end of their summer vacation. We wish we could spend more time with our children, we really do. Yet we also wish to pursue our own projects, both professionally and personally. This ambivalence hints at a basic characteristic of caring for one’s own child, which is known to every person who ever had a child: it involves both a burden and a benefit.1

Legal theorists have become increasingly interested in whether or to what extent the later writings of Wittgenstein support scepticism about the possibility of rational objectivity or determinacy in legal reasoning and discourse. Some critical legal theorists have explicitly relied upon Wittgensteinian arguments to support arguments for radical scepticism. More recently, anti-sceptical theorists have argued that reliance by critical theorists upon Wittgensteinian arguments involves a serious misinterpretation. I shall in this essay add my voice to those already making this argument.

The interest of political theory in the acceptance of law is obvious. If one believes that a regime is legitimate only if it governs with the consent of the governed, then the notion of acceptance is deeply linked with the notion of legitimacy, a fundamental concern of political theory. The interest of legal theory in the notion of acceptance is less obvious. I construe it to arise in the following way. One central tradition in legal theory is that of positivistic or content-independent theories of law. Positivism, crudely speaking, is characterized by some form of the Separation Thesis—that the existence of law is one thing and its merit or demerit another. But if it is important for positivistic legal theory to mark the separation of law and the merits of law, then it must also be important to mark the separation between law and the acceptance of law. The existence of law must be one thing and its acceptance as meritorious another. In deference to the separation of existence and merit, positivism tries to find a content-independent account of the validity of law. Equally, in deference to the separation of law and acceptance, positivism tries to find a content-independent account of the acceptance of law. The topic of this paper is whether the separation of law and the acceptance of law is possible. I shall try to suggest, in service of a non-positivistic or content-dependent approach to law, that this separation is not possible. I will attempt to argue on the basis of points which legal positivism itself has acknowledged to form valid constraints on any theory of acceptance. My ambitious thesis is that positivism has presented us with the reasons for rejecting it. Even if that thesis is not made out, I have a less ambitious thesis which I am confident of securing, that the demand for an account of law which permits law to be accepted ‘for any reason whatever’ is not a theoryneutral demand which might decide between positivism and natural law theory. Rather, it is an expression of a prior commitment to positivism. It is the familiar demand of natural law theory that the convergence of attitudes towards law which makes for acceptance of law must be a convergence for the right kind of reasons; ones that have to do with the value of law.

One of the most important and divisive issues facing heterogeneous or culturally diverse states—and most states are culturally diverse—is the relation between these different cultures and the state.

This question was raised initially in contemporary liberal political philosophy in terms of the fruitful debate between liberals and communitarians. Sandel, for example, criticized Rawls’s A Theory of Justice and, by extension, all liberal theories for falsely abstracting from conceptions of the good, abstracting from culturallyspecific conceptions, and grounding his liberal principles in terms of an abstract Kantian individualism. Liberal theorists countered by complaining that communitarians falsely conceived of a single homogeneous community. Although Rawls’s revised defense of liberal justice in his 1993 book Political Liberalism does not refer directly to the liberal-communitarian debate, nevertheless, his new grounding of liberal political principles, as principles which would be acceptable to individuals with diverse conceptions of the good, seems to justify liberal principles in terms of contemporary conditions, and, at the same time, challenges the relevance of those theories which appeal to any notion of a homogeneous ‘community’.

This paper explores how an adequate understanding of legal relations can be aided by, and sometimes requires, returning to the foundations of our conception of legal relations.

The process of conceptualization is a process of revealing the form in legal relations. The two most fundamental forms of legal relations, first enunciated by Aristotle, are corrective justice and distributive justice. The thesis of this paper is that an analysis of legal relations can be coherent only if it is faithful to the form of justice appropriate to the particular legal relation under study.

Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice.

This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law.

The ideology of treatment, as well as confidence in the special preventive effects of punishment, was severely attacked in the late 1960’s. In Scandinavia, this criticism quickly led to a series of legislative reforms. The first target was the system of preventive detention. The lack of legal security was considered to be most obvious flaw here. After the reforms concerning the use of preventive measures—for example, for dangerous offenders—were implemented, attention shifted to the structure of the whole penal system. From the mid 70’s on, the Finnish criminal justice system was reformed in a “neo-classical” spirit. Instead of individualization and rehabilitation, the emphasis is now placed on legal security and the principles of proportionality, predictability, and equality. These ideas and principles received their most manifest expression in the 1976 reform of sentencing provisions (Chapter 6 in the Finnish penal code).

No one familiar with Ronald Dworkin’s work can fail to be aware of his view that jurisprudence and law are both fundamentally enterprises of moral justification. Throughout his writings, Dworkin has resolutely set himself against the legal-positivist insistence on the separability of law and morality. The present essay critically explores the arguments and assumptions that underlie his stance.

The “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law’s function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.

This paper examines the claim that justice is necessary for a moral obligation to obey the law. By reflecting on the meaning of obedience, it identifies one version of the claim that must be right and another that must be wrong. It then focuses on the argument for a moral obligation to obey the law that most obviously includes the claim: John Rawls’s argument from the natural duty of justice. More specifically, it focuses on the degree of justice that is needed for this duty to ground a moral obligation to obey the law.

Although grand, explanatory theories of tort law come apart from one another in many ways, they also have a fair amount in common. One core claim found in the work of various Kantian theorists, as well as a number of leading rights theorists, is that tort law develops, incrementally, in such a way as to achieve ever greater coherence (where such coherence is measured according to key tenets of the particular theories). This article takes issue with that claim. It shows, by reference to a host of legal landmarks, that tort law neither does, nor must, develop in this way. A great many important innovations in tort cannot be reconciled with central aspects of the theories in view, but they are easily explained by reference to major changes in material conditions of life, shifts in the ideological Zeitgeist, judicial partiality and juristic influence. As long as such factors are free to exert their influence – and there is nothing to suggest that they are not so free – it is implausible to suggest that tort law will inexorably move towards a state of ever greater coherence.