Jules Coleman

One approach to legal theory is to provide some sort of rational reconstruction of all or of a large body of the common law. For philosophers of law this has usually meant trying to rationalize a body of law under one or another principle of justice. This paper explores the efforts of the leading tort theorists to provide a moral basis - in the sense of rational reconstruction based on alleged moral principles - for the law of torts. The paper is divided into two parts. In the first part I consider and reject the view that tort law is best understood as falling either within the ambit of the principle of retributive justice, a comprehensive theory of moral responsibility, or an ideal of fairness inherent in the idea that one should impose on others only those risks others impose on one. The second part of the paper distinguishes among various conceptions of corrective or compensatory justice and considers arguments — including previous ones by the author himself — to the effect that tort law is best understood as rooted in principles of corrective justice. This paper argues that although the principles of justice may render defensible many (but by no means all) of the claims to repair and to liability recognized in torts, it cannot explain why we have adopted a tort system as the approach to vindicating those claims. Some other principle — probably not one of justice — is needed to explain why it is that the victim's claim to repair is satisfied by having his losses shifted to his injurer — rather than through some other means of doing so. The paper concludes that the law of torts cannot be understood — in the sense of being given a rational reconstruction — under any one principle of morality.

This essay is part of a larger project exploring the extent to which the market paradigm might be usefully employed to explain and in some instances justify nonmarket institutions. The focus of the market paradigm in this essay is the relationship between the idea of a perfectly competitive market and aspects of both the rationality of political association and the theory of collective choice. In particular, this essay seeks to identify what connections, if any, exist between one kind of market account of the rationality of political association and one kind of market-based social choice rule. The market theory of political association I intend to discuss I call “market contractarianism,” and the collective choice rule whose relation to it I intend to explore is the unanimity rule. What, if anything, is the relationship between market contractarianism and the unanimity rule?

H.L.A. Hart'sThe Concept of Lawis the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.

Suppose the prevailing distribution of property rights is unjust as determined by the relevant conception of distributive justice. You have far more than you should have under that theory and I have far less. Then I defraud you and in doing so reallocate resources so that our holdings ex post more closely approximate what distributive justice requires. Do I have a duty to return the property to you? There are many good reasons for requiring me to return to you what I have taken. One is that while you may have no right in justice to all that you own, it does not follow that I do, or that I have a right to take it. Thus, requiring me to return the property to you is a way of recognizing that I had no right to take it from you in the first place.

Next SectionIn emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are ‘the moral semantics of law’ and ‘the normativity of theory construction in jurisprudence’. The moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.

This collection of essays by one of America's leading legal theorists is unique in its scope: It shows how traditional problems of philosophy can be understood more clearly when considered in terms of law, economics and political science. There are four sections in the book. The first offers a new version of legal positivism and an original theory of legal rights. The second section critically evaluates the economic approach to law, and the third considers the relationship of justice to liability for unintentional harms and to the practice of settling disputes rather than fully litigating them. Finally, Coleman explores formal social choice in democratic theory, the relationship between market behaviour and voting, and the view that morality itself, like law, is a solution of the problem of market failure. This book will be of cardinal importance to philosophers of law, legal theorists, political scientists and economists.

Gregory S. Kavka was a prominent and influential figure in contemporary moral and political philosophy. The essays in this volume are concerned with fundamental issues of rational commitment and social justice to which Kavka devoted his work as a philosopher. The essays take Kavka's work as a point of departure and seek to advance the respective debates. The topics include: the relationship between intention and moral action as part of which Kavka's famous 'toxin puzzle' is a focus of discussion, the nature of deterrence, the rationality of morals, contractarian ethics, and the contemporary relevance of Hobbes' political thought. Incorporating important philosophical statements of problems and fresh contributions to the ongoing debate about rational intention this volume will interest not just philosophers but also political scientists and economists.

We explore the relationship between jurisprudential theories pertaining to the nature of law and semantic and metasemantic theories pertaining to the meaning of ‘law’ in the wake of Dworkin’s notorious Semantic Sting argument in Law’s Empire (HUP 1986). Along the way we delineate various aspects of the semantic and metasemantic underpinnings of ‘law’ as an artifact term and advance the general methodological point that jurisprudential inquiry is only negligibly constrained by the findings of semantic and metasemantic inquiry.

In this essay, I characterize the original intervention that became Inclusive Legal Positivism, defend it against a range of powerful objections, explain its contribution to jurisprudence, and display its limitations and its modest jurisprudential significance. I also show how in its original formulations ILP depends on three notions that are either mistaken or inessential to law: the separability thesis, the rule of recognition, and the idea of criteria of legality. The first is false and is in event inessential to legal positivism. The second is inessential to legal positivism. The third is likely inessential to law. I then characterize the central claim of ILP in a way that relies on none of these: ILP is the claim that necessarily social facts determine the determinants of legal content. I show that ILP so conceived leaves the central debates in law largely untouched. I suggest how the most fundamental of these—the question of the normativity of law—at least can be usefully addressed. The essay closes by suggesting that even though one can distinguish the social from the normative dimensions of law, a theory of the nature of law is necessarily an account of the relationship between the two: It is a theory either of the difference that certain distinctive social facts make in normative space, or it is an account of the distinctive normative difference that law makes, and the social and other facts that are necessary to explain that difference. One can distinguish between but one cannot separate the social from the normative aspects of legality.

An extraordinary collection of the finest essays in the core areas of legal philosophy, _Readings in Philosophy of_ _Law_ is a perfect introduction to the breadth of issues covered in the philosophy of law. The essays are all classic papers chosen as much for their clarity of thought and comprehensiveness as for their distinctiveness and importance to the subject matters of legal philosophy. This collection is ideal for the professional as well as the student, as it brings together classic essays that are not otherwise available in one volume. The reader sees each author's thoughts and arguments unfold naturally within the context of other important works. For breadth of contributions and intellectual rigor, _Readings in Philosophy of Law_ is unrivalled.

US Senate is considering legislation designed to immunize small businesses from lawsuits brought by customers alleging to have been infected with COVID-19 while on the premises. The legislation seeks to subsidize reopening small businesses by reducing their vulnerability to liability. I argue that the legislation produces worse public health outcomes than existing liability regimes, obliterates claims to redress supported by corrective justice, and unfairly burdens victims by forcing them to become de facto insurers of their injurers. In the US, where health insurance is inextricably linked with employment, and during the pandemic with the consequent loss of employment, the legislation is cruel in addition to being ineffective, unjust, unfair and inappropriate. Since I first uploaded this manuscript to Philpapers, Senate Republicans have in fact introduced specific legislation that is marginally different than the one I discuss in the manuscript. Instead of offering blanket immunity, the current Republican proposal offers a series of substantial barriers both to filing lawsuits and to securing a successful verdict at trial. I discuss these as an addendum to the main paper. In short, though the changes impact some features of my argument, they do not alter any of the conclusions. The current proposal produces worse public health outcomes than would existing tort regime; it leaves the vast majority of those with legitimate claims to repair in corrective justice without a remedy, when providing the opportunity to secure a remedy for wrongs is in large measure, the essential nature of tort liability. Worse still, it continues to render victims the de facto insurers of those who have wronged them; it imposes the burden of spreading risks on victims who are considerably less efficient risk spreaders than are businesses and hospitals; it constitutes an inappropriate response to the challenge it seeks to address, i.e. subsidizing various sectors of the economy by reducing their overall costs; and given the fact that in the US health insurance is too closely linked to employment, it shifts the costs of the pandemic to those who are most at risk of losing their health insurance, rendering the proposal cruel in addition to inefficient, unjust, unfair and inappropriate. For those interested, I am considering a short op-ed piece assessing the particular legislative proposal. If I follow through I will let the readership know where that can be found