Arthur Ripstein

"The past two decades have seen renewed scholarly and popular interest in the law and morality of war. Positions that originated in the late Middle Ages through the 17th century have received more sophisticated philosophical elaboration. Although many contemporary writers draw on ideas that figure prominently in Kant's moral philosophy, his explicit discussions of war have not been brought into their proper place within these discussions and debates. Kant argues that a special morality governs the permissible use of force because of wars distinctive immorality. He characterizes war as barbaric, because in war might makes right - which side prevails does not depend on who is in the right. The very thing that makes war wrongful also provides the appropriate standard for evaluating the conduct of war, and the only basis for law governing war"--

Kant deploys analogies from private law in describing relations between states. I explore the relation between these analogies and the broader Kantian idea of the distinctively public nature of a rightful condition, in order to explain why states, understood as public things, stand in horizontal, private legal relations without themselves being private. I use this analysis to explore the international law analogues of the three titles of private right, explaining how territory differs from property, treaty from contract and the specific form of status relations between nations. I conclude with a brief discussion of the ongoing relevance of these horizontal relations.

The thesis of The Internationalists is that the Kellogg Briand Pact of 1928 fundamentally reshaped the international legal order. By outlawing war, the Pact replaced one basic norm of international legal ordering with another. Hathaway and Shapiro present their argument in the form of a narrative, including biographical details about the central protagonists and vignettes about key meetings. They present it all with an eye not only to the importance of particular characters, but also to sheer coincidence. Underneath the sweeping historical narrative lies a serious, scholarly book with a central legal and philosophical argument. Hathaway and Shapiro use the history of international law from the seventeenth through the twentieth century to examine the nature of enforcement mechanisms, the relation between rights and remedies, issues of collective as opposed to individual responsibility, and—perhaps most strikingly—the changing status of neutrality.

Property and sovereignty are often used as models for each other. Landowners are sometimes described as sovereign, the state’s territory sometimes described as its property. Both property and sovereignty involve authority relations: both an owner and a sovereign get to tell others what to do — at least within the scope of their ownership or sovereignty. My aim in this Article is to distinguish property and sovereignty from each other by focusing on what lies within the scope of each. I argue that much confusion and more than a little mischief occurs when they are assimilated to each other. The confusion can arise in both directions, either by supposing that property is a sort of stewardship, or that sovereignty is a large-scale form of ownership. One of the great achievements of modern (i.e., Kantian) political thought is recognizing the difference between them.

Contemporary debates about "moral luck" were inaugurated by Thomas Nagel’s celebrated essay on the topic. Nagel notes that the puzzle about moral luck is formally parallel to the familiar epistemological problem of skepticism. In each case, the problem is generated by the apparent coherence of the thought that inner aspects of our lives are self-contained, and can be both understood and evaluated without any reference to anything external. Epistemological skepticism begins with the thought that my thoughts could be exactly as they are without any contact with the world outside, where "exactly as they are" is glossed in terms of the grounds that connect those thoughts with each other and provide the basis for our confidence in them. In the practical case, the problem of moral or legal luck arises from the thought that the only basis we have for evaluating a person’s action is his decision to perform that action. The Kantian and post-Kantian response to epistemological skepticism is not to try to defeat the skeptic on his or her own grounds, but rather to show that there is something wrong in the way the problem is set up. Our ordinary ways of thinking about ordinary things, and other persons, are only in trouble if they rest on an unwarranted inference from something that is more secure. I will engage with legal luck in a parallel way: our ordinary ways of thinking about responsibility are only in trouble if they rest on an unwarranted inference from something more secure. I argue that the concept of a completed wrong is basic to law, and that aspects of human interaction on which luck-skeptics focus — blameworthiness and harm — are derivative. I frame the issue not in terms of moral significance, but rather in terms of the authorization of the state to use force, either to order the payment of damages in tort or to imprison criminals. In the first part of the Article I consider the case of tort liability for negligence, explaining the structure of a completed wrong and the correspondingly derivative significance of carelessness as such. In the second part I turn to the issue of criminal punishment. I offer a brief explanation of the state’s authority to punish, before going on to show that the basic case that engages this authority is the completed crime. I then show why the failed attempt also attracts punishment, even though it is a derivative case.

The central claim of the dissertation is that one uses one's own personality as a model in making sense of the actions of others. Prereflective common sense endorses this view, but it has not been popular among philosophers, primarily because it is not clear how "putting yourself in someone else's shoes" can count as an explanation. ;The first part is primarily expository and destructive. I outline and criticize two versions of the widely accepted philosophical account of commonsense psychology. The first version takes it to be a collection of inductive generalizations about human behavior in typical circumstances. This view probably has few proponents, but I consider it because its limitations provide much of the motivation for the more popular alternative, according to which commonsense psychology involves a calculus of belief and desire. I describe in some detail how this more sophisticated view must work if it is to account for commonsense explanation. I then argue that it cannot work in that way, because it fails to provide a principled account of explanations of the wide variety of actions that are not directed at independently specifiable outcomes. ;My presentation of my positive view begins with a discussion of ordinary belief attributions and their role in explanation. I argue that the ability to follow another's beliefs involves nothing that is not already involved in mastery of a natural language. I then display my view of the structure of explanations of actions with an extended example of explanations of laughter. Having displayed my view, I apply it to a variety of explanations appealing to character, emotions, and changes of character. ;I then show that "putting yourself in someone else's shoes" can provide genuine explanations despite its lack of reliance on generalizations that can be made explicit. I point to legitimate explanatory uses of modeling outside of commonsense psychology and argue that using oneself as a model is equally legitimate. I also show that the explanatory usefulness of the model does not depend on incorrigibility about one's own motives. ;The dissertation closes with a discussion of the nature of mental states and self-knowledge. Although my account is individualistic in its dependence on each person's ability to use his or her personality to model others, I conclude that that ability itself depends on membership in a shared cultural and linguistic community

Ronald Dworkin occupies a distinctive place in both public life and philosophy. In public life, he is a regular contributor to The New York Review of Books and other widely read journals. In philosophy, he has written important and influential works on many of the most prominent issues in legal and political philosophy. In both cases, his interventions have in part shaped the debates he joined. His opposition to Robert Bork's nomination for the United States Supreme Court gave new centrality to debates about the public role of judges and the role of original intent in constitutional interpretation. His writings in legal philosophy have reoriented the modern debate about legal positivism and natural law. In political philosophy, he has shaped the ways in which people debate the nature of equality and has reframed debates about the sanctity of life.

This book is a revised and expanded version of a special issue of the Boston Review that appeared in 1994. Since Joshua Cohen took over as editor of the Review a few years ago, it has published symposia with a lead piece and replies. Like the others in the series, this collection brings together prominent thinkers from a variety of perspectives, all of whom present their views in clear and accessible prose. It contains an essay by Martha Nussbaum, responses by fifteen Americans and one Canadian, and Nussbaum’s reply to her critics.

I WISH to defend the claim that imagining what it would be like to be in "someone else's shoes" can serve to explain that person's actions. This commonsense view has considerable plausibility, but requires clarification to be philosophically defensible; discussions of explanation often assume that understanding requires a theory of the thing understood. If understanding requires a theory, then however much imagining what it would be like to be in another person's situation might sooth one's curiosity, it cannot provide real understanding. I shall argue that imagining oneself in someone else's situation does more than that: it allows actions to be explained without recourse to a theory of human behavior. The resulting explanations are real explanations, not just some reassuring facsimile thereof.

Like many of you, I have a neighbor with an excitable car alarm. It goes off if someone drives by at just the right speed, if the humidity is right, or if a large insect lands on the hood. Worse, it seems most sensitive at night. (Perhaps that’s just when he parks in front of my house.) I’d like to do something about it, to preempt it before it preempts another night of sleep. One possibility, which is beyond my competence, is repairing it myself. Another, which I have so far resisted, is to get out my tool box and remove the offending device. Private law has a kinder and gentler solution: I can get an injunction. Rather than trying to sue my neighbor for minuscule damages each time he wakes me, and waste a huge amount of both of our time in the process, I can enlist the state’s support, and have it act preemptively to prevent him from waking me.

Law students are usually told that the purpose of damages is to make it as if a wrong had never happened.3 Although torts professors are good at explaining this idea to their students, it is the source of much academic perplexity. Money cannot really make serious losses go away, and it seems a cruel joke to say that money can make an injured person “whole.” Worse still, if money could make an injured person whole, injuring someone and then paying them seems just as good as not injuring them at all.

In one of the few widely discussed passages in the Doctrine of Right, Kant makes the surprising claim that a shipwrecked sailor who dislodges another from a plank that will support only one of them is "culpable, but not punishable." Many commentators regard this passage as a sort of smoking gun that shows that, in extremis, Kant resorts to the very sort of empirical and consequentialist reasoning that he claims to do without.2 My aim in this paper is to defend his analysis, by showing both that it can be generalized, and that it provides a satisfying account of the normative boundary between justification and excuse in the criminal law. After explaining Kant ’s remark in light of the context in which he makes it, my main strategy of defense will be to show how it applies not only to the specific example Kant considers, but also to cases in which a person responds to danger by damaging property, and those in which a person whose own life is not in danger breaks the law to save the life of another. I will also use his account to illustrate the difficulties with the leading alternatives

The 2008 meltdown in global capital markets has led to a renewed interest in questions of economic distribution. Many people suggest that the motives, incentive structures, and institutions in place were inadequate and, for the first time in a generation, public debate is animated by arguments about the need for greater equality. G.A. Cohen's new book resonates with many of the themes of these debates; he advocates a more thoroughgoing equality, even more thoroughgoing than that demanded by John Rawls in his Theory of Justice; he also advocates for a political philosophy organized around the ethos that shapes ordinary life, rather than one restricted to the coercive institutions of law and the state. Were ordinary ..