Matthew Henry Kramer

For decades, the paramount alternative to the Interest Theory of rights has been the Will Theory. This article seeks to strengthen the position of the Interest Theory by discrediting its chief rival. Because the article’s main critique of the Will Theory proceeds from premises that do not beg any questions against that theory, it goes further than previous critiques in rebutting all or most versions of the Will Theory on their own terms. In addition, by accentuating the untenability of a sophisticated hybrid theory of rights, the article emphasizes that the Will Theory’s failures are the Interest Theory’s successes.

This article explores some implications of the counterfactual aspect of freedom and unfreedom. Because actions can be unprevented even if they are not undertaken, and conversely because actions can be prevented even if they are not attempted and are thus not overtly thwarted, any adequate account of negative liberty must ponder numerous counterfactual chains of events. Each person's freedom or unfreedom is affected not only by what others in fact do, but also by what they are disposed to do. Their dispositions play a key role in determining whether the abilities and inabilities of each person would continue as such if the person's conduct or situation were altered in various respects. Until one knows whether people would or would not have acted in certain ways if a given person had sought to do something, one cannot know whether that person was free to do that thing. Nor can one know whether the person was free to perform that action in combination with manifold subsequent actions. Thus, whether tacit or explicit, counterfactual scenarios are indispensable for any enquiry into a person's liberty. By relying on such scenarios, which trace how people are disposed to act vis-a-vis one another, one takes account of the central role of unmanifested dispositions in setting the bounds of people's sociopolitical freedom. Among the principal theorists whose work is critically examined in this article are Hillel Steiner, Ian Carter, and G.A. Cohen. Key Words: freedom • liberty • unfreedom • negative liberty • counterfactuals • disposition

During the past few decades, Michael Moore has written incisively on an array of matters concerning the relationships between law and morality. While reflecting on those relationships, he has plumbed the nature of morality itself in impressive depth. Among the topics which he has addressed, the problem of torture has been prominent and controversial. It is a problem, moreover, that has led to some of his most searching enquiries into the character of moral obligations. In the present essay I take issue not only with many of Moore's conclusions about torture, but also with some of his more far‐reaching claims about the domain of morality

In an array of writings stretching over the better part of two decades, Quentin Skinner has repeatedly challenged the modern conception of negative liberty developed by Isaiah Berlin and many other theorists. He has sought to draw attention to some once vibrant but now largely peripheral traditions of thought—especially the civic‐republican or neo‐Roman tradition—in order to highlight what he sees as the limitedness and inadequacies of the currently dominant ways of thinking about freedom. The present essay will endeavor to defend one important aspect of the modern understanding of negative liberty against Skinner's strictures, and will challenge Skinner's reading of Thomas Hobbes.

Inclusive Legal Positivism, as understood throughout this article, consists in the following thesis: It can be the case, though it need not be the case, that a norm’s consistency with some or all of the requirements of morality is a precondition for the norm’s status as a law in this or that jurisdiction. While such a precondition for legal validity is not inherent in the concept of law, it can be imposed as a threshold test under the Rule of Recognition in any particular legal regime. That test, which can be applied by the officials in such a regime to all of the legal norms therein or to only some subset of those norms, is one of the criteria that the officials use for ascertaining the law. Insofar as a criterion of that sort does prevail in any particular legal system, then, some degree of moral worthiness is a necessary condition for the legally authoritative force of each norm that is validated thereunder. Inclusive Legal Positivism, which readily accepts the possibility of such a state of affairs, is inclusive because it allows that moral precepts can figure among the criteria that guide officials’ ascertainment of the law. Inclusivist theorists reject the view that every criterion of law-ascertainment in every possible legal system is focused on nonnormative matters of provenance. At the same time, the Inclusivists are positivists because they also reject the view that every possible legal system includes moral tests among its law-ascertaining criteria. An Inclusive Legal Positivist insists that such tests are contingent features, rather than essential features, of the systems of law wherein they are applied.

In Legality Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a rule of recognition through which officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the rule of recognition are confused and that his model of lawis consequently untenable. Shapiro contends that a new approach is vital for progress in the philosophy of law and, with his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant planning theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the planning theory

John Locke's labor theory of property is one of the seminal ideas of political philosophy and served to establish its author's reputation as one of the leading social and political thinkers of all time. Through it Locke addressed many of his most pressing concerns, and earned a reputation as an outstanding spokesman for political individualism - a reputation that lingers widely despite some partial challenges that have been raised in recent years. In this major new study Matthew Kramer offers an extensive critique of the labor theory and investigates the consequences of its downfall. With incisive analyses of the merits and failings of many aspects of Locke's political thought, Kramer advances a powerful challenge to Locke's image as an individualist. Employing a rigorously philosophical methodology, but remaining aware of the insights generated by historical approaches to Locke, Kramer concludes that Locke's political vision was in fact profoundly communitarian.

This essay maintains that the question in its title is really three sets of questions: a conceptual inquiry, a moral/political inquiry, and an empirical inquiry. After devoting some attention to the relevant conceptual issues, the essay ponders in detail the moral/political issues. It suggests some answers to the germane moral/political questions, and it takes pains to distinguish those questions from other lines of inquiry with which they might be confused. Although only animals and dead people are mentioned in the title, the essay also considers whether infants, comatose people, lunatics, future generations, groups, trees, and natural phenomena such as rivers should be classified as potential holders of legal rights

Lon Fuller is best known among legal philosophers for his efforts to highlight the intrinsically moral nature of law. To show that his efforts come to nought, the present essay ponders not only the ideas advanced by Fuller himself, but also some of the defences of him that have been mounted in recent years. Those defences centre on his notion of reciprocity, according to which the officials in a genuine legal system have effectively undertaken to respect die confines of the mandates which they ask citizens (including themselves) to obey. Building on that notion, the supporters of Fuller have affirmed that the basic characteristics of law are intrinsically promotive of values such as autonomy and due process. As the present essay seeks to demonstrate, their sophisticated lines of argument turn out to be unavailing

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it

Throughout the English-speaking world, and in the many other countries where analytic philosophy is studied, Hillel Steiner is esteemed as one of the foremost contemporary political philosophers. This volume is designed as a festschrift for Steiner and as an important collection of philosophical essays in its own right. The editors have assembled a roster of highly distinguished international contributors, all of whom are eager to pay tribute to Steiner by focusing on topics on which he himself has concentrated. Some of the contributors engage directly with Steiner's work, whereas others focus not directly on his writings but instead grapple with issues that have figured prominently therein. Each essay seeks to advance the debates in which Steiner himself has so notably participated. The study concludes with a response by Steiner himself.

Two recent high-quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law-validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article responds to their defenses of Raz's Exclusive Legal Positivism

Legal positivism’s multi-faceted insistence on the separability of law and morality includes an insistence on the thoroughly conventional status of legal norms as legal norms. Yet the positivist affirmation of the conventionality of law may initially seem at odds with the mind-independence of the existence and contents and implications of legal norms. Mind-independence, a central aspect of legal objectivity, has been seen by some theorists as incompatible with the mind-dependence of conventions. Such a perception of incompatibility has led some anti-positivist theorists to reject the notion of law’s conventionality, and has led some positivist theorists to query law’s mind-independence. What will be contended here is that both camps are mistaken.

How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral principles are consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law.

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so‐called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History . In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performance

This paper seeks to clarify and defend the proposition that moral realism is best elaborated as a moral doctrine. I begin by upholding Ronald Dworkin’s anti-Archimedean critique of the error theory against some strictures by Michael Smith, and I then briefly suggest how a proponent of moral realism as a moral doctrine would respond to Smith’s defense of the Archimedeanism of expressivism. Thereafter, this paper moves to its chief endeavor. By differentiating clearly between expressivism and quasi-realism, the paper highlights both their distinctness and their compatibility. In so doing, it underscores the affinities between Blackburnian quasi-realism and moral realism as a moral doctrine. Finally, this paper contends—in line with my earlier work on these matters—that moral realism as a moral doctrine points to the need for some reorienting of meta-ethical enquiries rather than for the abandoning of them.

Critical Legal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie critical legal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the critical legal studies movement by laying out a framework of five general themes: contradictions, contingency, patterning, perspective, and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory

What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry. As Kramer shows, objectivity and the rule of law are complicated phenomena, each comprising a number of distinct though overlapping dimensions. Although the connections between objectivity and the rule of law are intimate, they are also densely multi-faceted.