William A. Edmundson

Recent critics of the Roberts Court chide it for its lack of regard for precedent. Fred Schauer faults these critics for erroneously assuming that a rule of stare decisis formerly played a significant role in the Supreme Court's decision-making. In fact, it has long played only a rare and weak role in the Court's work. Nonetheless, according to Schauer, the critics are to be thanked for invigorating a needed debate about the importance of "stability, consistency, settlement, reliance, notice, and predictability" in the Court's decisions. This article argues that Schauer exaggerates the weakness of stare decisis in the Court's practices; and that his call for a public debate on the merits of the norm of stare decisis can only weaken it.

John Rawls argued in A Theory of Justice that “justice as fairness…is likely to have greater stability than the traditional alternatives since it is more in line with the principles of moral psychology”. In support, he presented a psychology of moral development that was informed by a comprehensive liberalism. In Political Liberalism, Rawls confessed that the argument was “unrealistic and must be recast”. Rawls, however, never provided a psychology of moral development informed by a specifically political liberalism, leaving it at a disadvantage with respect to comprehensive liberalism itself. I argue that no coherent account is available. But, because Rawls’s Liberal Principle of Legitimacy, along with its implied stricture against “indoctrination in the pejorative sense,” is a creature of ideal rather than non-ideal theory, the deficiency is far less significant than many would assume. In non-ideal circumstances -- such as ours -- political liberalism does not disallow, and in fact requires, compulsory, free early education informed by the best available comprehensive liberal philosophy.

The late Jerry Cohen struggled to reconcile his egalitarian political principles with his personal style of life. His efforts were inconclusive, but instructive. This comment locates the core of Cohen’s discomfort in an abstract principle that connects what we morally ought to be compelled to do and what we have a duty to do anyway. The connection the principle states is more general and much tighter than Cohen and others, e.g. Thomas Nagel, have seen. Our principles of justice always put our personal integrity to the test, unless those principles are designed not to. But to craft principles with an view to avoiding that test is, as Cohen argued, itself to undermine both justice and our integrity.

The question, "Why should I obey the law?" introduces a contemporary puzzle that is as old as philosophy itself. The puzzle is especially troublesome if we think of cases in which breaking the law is not otherwise wrongful, and in which the chances of getting caught are negligible. Philosophers from Socrates to H.L.A. Hart have struggled to give reasoned support to the idea that we do have a general moral duty to obey the law but, more recently, the greater number of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived. The thought that there is no such duty poses a challenge to our ordinary understanding of political authority and its legitimacy. In what sense can political officials have a right to rule us if there is no duty to obey the laws they lay down? Some thinkers, concluding that a general duty to obey the law cannot be defended, have gone so far as to embrace philosophical anarchism, the view that the state is necessarily illegitimate. Others argue that the duty to obey the law can be grounded on the idea of consent, or on fairness, or on other ideas, such as community.

It is commonly supposed that citizens of a reasonably just state have a prima facie duty to obey its laws. In recent years, however, a number of influential political philosophers have concluded that there is no such duty. But how can the state be a legitimate authority if there is no general duty to obey its laws? This article is an attempt to explain how we can make sense of the idea of legitimate political authority without positing the existence of a general duty to obey the law. The explanation makes use of a distinction between laws of general application, on one hand, and on the other the particularized, directed efforts by state officials to channel and resolve disputes (including those arising from violations of the law). A state's legitimate authority entails a general duty to cooperate in the latter type of effort, rather than upon a dubious general duty to obey the law.

Contextualism answers skepticism by proposing a variable standard of justification, keyed to the context of utterance. A lawyer's situation with respect to a criminal defendant's factual guilt is a special one. The argument here is that in this special context an especially high standard of epistemic justification applies. The standard is even more exacting than the proof-beyond-reasonable-doubt standard that juries are sworn to follow. The upshot is that criminal defense lawyers normally cannot know that a client is factually guilt.

This is a critical discussion of the Baldus study of capital sentencing in Georgia. It concludes that the Baldus finding of a "race-of-the-victim" effect is less robust than capital-punishment abolitionists have claimed. But the flaws in the Baldus study should not comfort death-penalty advocates, for they reveal an epistemological barrier to the US Supreme Court's ever being able to satisfy itself both that the sentence reflects particularized consideration of the circumstances and character of the defendant and that it is not the product of racial bias

Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is usually taken to be prima-facie, comprehensively applicable, universally borne, and content-independent.” This essay is a commentary on the current state of discussion of this perennial philosophical topic.

John Rawls argued in A Theory of Justice that ‘justice as fairness … is likely to have greater stability than the traditional alternatives since it is more in line with the principles of moral psychology'. In support, he presented a psychology of moral development that was informed by a comprehensive liberalism. In Political Liberalism, Rawls confessed that the argument was 'unrealistic and must be recast'. Rawls, however, never provided a psychology of moral development informed by a specifically political liberalism, leaving it at a disadvantage with respect to comprehensive liberalism itself. I argue that no coherent account is available. But, because Rawls’s Liberal Principle of Legitimacy, along with its implied stricture against 'indoctrination in the pejorative sense', is a creature of ideal rather than non-ideal theory, the deficiency is far less significant than many would assume.

Aristotle thought we are by nature political animals, but the state-of-nature tradition sees political society not as natural but as an artifice. For this tradition, political society can usefully be conceived as emerging from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state's just powers and prerogatives. A state-of-nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state's resulting normative endowment, which includes a (purported) moral power to impose duties of obedience. State-of-nature theories disagree about the NNE. For Locke, it included a “natural executive right” to punish wrongdoing. Recent social scientific findings suggest a quite different NNE. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers. The social science can support two claims. One, is that the NNE is (as Aristotle held) already political. The other is that political authority can be re-conceived as a matter of standing—that is, as the state's unique moral permission coercively to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience

The last half-century has seen a steady loss of confidence in the defensibility of a duty to obey the law — even a qualified, pro tanto duty to obey the laws of a just or nearly just state. Over roughly the same period, there has been increasing interest in virtue ethics as an alternative to the dominant consequentialist and deontological approaches to normative ethics. Curiously, these two tendencies have so far only just barely linked up. Although there has been discussion of the question whether patriotism should be considered a virtue, and abstract discussion about the virtuous person’s relation to authority and justice in general, there has been little virtue-oriented discussion having specific reference to the kinds of difficulties that have motivated the ascendant skepticism about political obligation. This silence has persisted despite repeated calls for renewed work on “virtue politics”. This article proposes and defends a preliminary account of law-abidance (as contrasted to obedience) as a virtue. It argues that a virtue-theoretic account of our relation to the law offers advantages that are not contingent upon the independence or priority of the virtues with respect to consequentialist and deontological components of a complete moral theory. Chief among these advantages is the promise of an alternative to the deadlocked positions taken by apologists for the duty to obey the law and their philosophical-anarchist critics — positions which have tacitly been assumed to exhaust the viable possibilities.

Urban sprawl and aggressive driving are two problems that afflict many of America’s major cities. The two affect Atlanta to a notoriously high degree. The two problems are connected. Aggressive driving is not so much a symptom of “road rage” as it is an attempt to communicate with slower drivers. The aggressive driver tailgates other drivers with the intention of letting them know that they are impeding the flow of faster traffic. Aggressive drivers are engaged in what “New Chicago School” legal theory calls “norm seeding.” These drivers are trying to get others to conform to a different norm than what the posted speed limit dictates. The posted speed limit, which is the legal norm, reflects legislative judgments based on concerns of safety and fuel economy. The higher, informal, speed limit reflects something else: the impatience many drivers feel as they drive larger distances and spend correspondingly greater amounts of time in traffic

He has two antagonists: the first pushes him from behind, from his origin. The second blocks his road ahead. He struggles with both. Actually the first supports him in his struggle with the second, for the first wants to push him forward; and in the same way the second supports him in his struggle with the first, for the second of course forces him back. But it is only theoretically so. For it is not only the two protagonists who are there, but he himself as well, and who really knows his intentions?

Coherentism, in philosophy generally, is of either an epistemological or a metaphysical type. The epistemological type responds to worries about foundationalism that have no serious counterpart within the philosophy of law. The metaphysical type is implausible generally, but has been put to use within the philosophy of law - by Ronald Dworkin in particular - to close up "gaps" in the law that provide an opening for purportedly worrisome exercises of judicial discretion. These remarks conclude with the suggestion that the conception of political legitimacy that underlies such worries is crude and unwarranted.

An ambitious proposal by Sue Donaldson and Will Kymlicka seeks to break out of an impasse that animal-rights advocacy seems to have reached. They divide the animal kingdom into three categories and distribute rights accordingly. Domesticated animals are to be treated as citizens, enjoying the same rights and duties as human citizens (adjusting for relevant differences in ability, just as we do for children and the severely cognitively handicapped). Wild animal species are to be treated as sovereign nations having rights to their territories Liminal animals are to be treated as resident aliens. This article is a critique of this “Citizenship Theory” of animal rights. One theme of the critique questions whether citizenship and sovereignty are in fact doing the normative work that Citizenship Theory represents them as doing. Another theme questions whether rights of citizenship and sovereignty can be of use to the animals Citizenship Theory would bestow them on.

How is a legitimate state possible? Obedience, coercion and intrusion are three ideas that seem inseparable from all government and seem to render state authority presumptively illegitimate. This book exposes three fallacies inspired by these ideas and in doing so challenges assumptions shared by liberals, libertarians, cultural conservatives, moderates and Marxists. In three clear and tightly argued essays William Edmundson dispels these fallacies and shows that living in a just state remains a worthy ideal. This is an important book for all philosophers, political scientists and legal theorists as well as other readers interested in the views of Rawls, Dworkin and Nozick, many of whose central ideas are subjected to rigorous critique

Pluralism is an appealing and now orthodox view of the sources of value. But pluralism has led to well-known difficulties for social-choice theory. Moreover, as Susan Hurley has argued, the difficulties of pluralism go even deeper. In 1954, Kenneth May suggested an intrapersonal analogue to Arrow's Impossibility Theorem. In brief, May showed that an individual's response to a plurality of values will, given certain additional assumptions, lead to intransitive preference orderings. (Daniel Kahneman and others have shown that intransitivity is an empirical feature of preferences.) Hurley challenged May's additional assumptions as implausibly strong; but her work did not exclude the possibility that values may disobey the canon of rationality that insists on transitivity. John Broome has recently extended these canons to the "betterness" relation. This chapter argues that there is no good reason to be confident that values, understood as real features of the world, behave consistently with those canons.

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice to dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms