Barbara Levenbook

Alon Harel's general purpose, as he sees it, is to offer a non-instrumentalist justification for certain political and legal institutions that "echo[es] the sentiments and passions of those who support, sustain, and even challenge [them]" (p. 225). These institutions are the institutions of legal rights, legal punishment by the state, constitutional directives, and judicial review. These institutions aren't merely justified contingently, according to Harel, even when an instrumentalist justification works for them. The institutions are intrinsically valuable, being necessary to a just society (p. 3). They are "necessary for the realization of certain values." (p. 225) So they "matter as such," and law matters as such. It's an ambitious project, for which Harel offers long chains of argumentation. Along the way, he presents us with intriguing claims: values are partially constructed by (legal) rights (p. 6), the value of some goods (he claims legal punishment is one of them) depends on their being provided by the right agent, constitutional entrenchment of rights constitutes (valuable) public recognition of a duty binding the state (in particular, the legislature, p. 7), sometimes democracy undermines legitimacy (p. 141), and the value of judicial review is its realization of a moral right to a hearing that rights-holders have when the issue is whether their right is justifiably violated and also when the issue is whether or not they have the right they claim. In the end, he doesn't quite pull his non-instrumentalist project off.

There are several theories known as theories of legal interpretation in common law systems. Four that have particular currency are intentionalism, textualism, pragmatism and Dworkin’s brand of interpretivism. (There are also, for the United States in particular, originalism for the Constitution and a brand of originalism for statutory interpretation.) These theories purport to be, at least in part, prescriptive, though some (notably Dworkin’s) also purport to be descriptive of some judicial practice. They prescribe, in general terms, a method for judges. But it isn’t clear for what task they prescribe. Indeed, it isn’t clear that all the theories are prescribing for the same task. In this chapter, I will examine three of these so-called `theories of interpretation’ in the light of characteristic and distinctive aspects of common law systems. I suggest that these theories are not all prescribing for the same enterprise. Moreover, no single one of these interpretive methods accurately accesses ex ante law in common law systems. This is because any such method must provide a plausible guide to case law.

This is a reply to Fishkin's article in the same anthology, "Liberal Theory and the Problem of Justification." In it, Fishkin claims that there is a legitimacy crisis facing the liberal state and that "liberalism self-destructs as a coherent moral ideology." My major objection to Fishkin's essay concerns his two attacks on the (apparent) adequacy of internal justifications of a liberal state. I reconstruct his two arguments and show that, for various reasons and on alternate interpretations of ambiguous premises, they fail. Fishkin thus fails to provide a reason to believe that an internal justification of a liberal state is bound to be faulty or inconclusive.

This article responds to Weinreb, "Desert, Punishment, and Criminal Responsibility," Law & Contemp. Probs., 1986. Weinrib sets out to discover how a retributivist can defend the felony murder rule and several other rules of criminal liability. He finds it in the ontological assumption of "a normative order." He puts this assumption to three uses. It is extremely difficult to understand what he means by "a normative order" in a way that makes his other claims consistent. On a natural interpretation of his central claims about a normative order, the assumption fails to serve Weinreb's first use, overcoming a paradox in the "abstract idea of desert." Further, contra Weinrib, the assumption does not provide a rationale for all of the problematic rules of liability it is postulated to explain. Nor perhaps ought we to seek a rationale for some of them.

Legal restrictions on the intellectually disabled (formerly labelled "retarded") take various forms and may be subtly interwoven with accompanying legal privileges (such as immunity in contract). Their net effect, however, is to reduce the legal status of the persons restricted in comparison with normal adult citizens. This article examines various assumptions one might make about the moral status of the intellecutally disabled in arguments that they should have certain legal restrictions. It is critical of some of the arguments thus produced. The moral arguments for certain legal restrictions are more complex than has been appreciated by propononents or opponents of restriction in the legal literature.

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guide the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’.

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons.

In various works, Mark Greenberg has positioned himself as an important critic of legal positivism. He has made a transcendental attack on a metaphysical position that some notable legal positivists have held -- namely, that law is ultimately grounded in social facts. He has pressed legal positivism at a point of perceived vulnerability – the failure of such positivists to develop and defend a compelling theory of legal content. Moreover, in his Moral Impact Theory of law, he preserves a necessary connection between legal obligations and good reasons for action that is absent in legal positivism. This last point may seem particularly attractive, even to those with positivist sympathies. One of his arguments against legal positivism relies heavily on what he calls "the bindingness hypothesis"—namely, the claim that it is part of the “nature of law” that it is “supposed to operate” so as to “arrange matters” to “reliably ensure” that its legal obligations are genuinely, all-things-considered, binding. I argue that Greenberg’s defense of the bindingness hypothesis fails. I attack two other defenses he raises for the Moral Impact theory: the assertion that the Moral Impact Theory makes it easy to account for our concern with law, with the implication that legal positivism cannot so easily account for that concern; and the claim that his Moral Impact Theory fits appellate practice better than some views. I show that these the arguments for the Moral Impact Theory are inadequate. In response to Greenberg’s further argument that the Moral Impact Theory rescues the idea of legal obligation as genuine obligation, I argue that the Moral Impact Theory does so at a very steep price – one that is not worth paying.

There is a widely held view that legislative intention determines the meaning of a statute. The focus of this article is meaning in the sense of full linguistic content, which may not be the same as legal content. Linguistic intentionalism appears to have its greatest appeal when a statute has a partly implied linguistic meaning. It seems natural to suppose that the part of the meaning that is implied by the explicit wording in the statute is determined by an intention of the legislature—roughly, what the legislature intended to imply. The purpose of this article is to present some new reasons to doubt linguistic intentionalism and to offer an alternative for a particular kind of implied statutory meaning that some philosophers of language call implicitures. Rather than legislative intention, the meaning of implicitures is metaphysically determined by intention-free pragmatic linguistic norms, the grasp of which is part of the language competence of ordinary law subjects. The use of these norms, in combination with certain facts about background social practices and other conventions, generates implicitures that may be inconsistent with actual communicative intentions. These intention-free pragmatic norms, and the implicitures they generate, are explanatorily prior to the fact—if there is such a fact—of what impliciture it is reasonable to infer that the enacting legislature (or the legislators collectively) intended. Reference to legislative linguistic intention (actual or reasonably imputed) is thus explanatorily inert.

In his “Integrity: Justice in Work Clothes,” Postema assumes the task of showing that integrity is a genuine moral value of political communities, distinct from other values such as justice and fairness. Postema’s conception of integrity borrows much from Dworkin’s, but also differs from it in an important respect. As anyone familiar with Dworkin’s theory would expect, Postema’s idea of integrity is a kind of fidelity in laws (“practical directives”) and policies to principles arising from what Dworkin famously called “past political decisions of the community.” It is fidelity to a conception of justice that fits and unifies these past decisions (and present ones), a conception the community can be viewed as forming. Postema’s innovation is to see integrity as “complex,” incorporating both “respect” for the past and also “regret.” Because of regret, any set of principles fitting the past will have some compromised coherence – indeed, some incoherence. Regret is consistent with preserving some currency for a morally incorrect decision, but limiting its force. The ultimate justification for viewing integrity as a virtue of law, Postema argues, is that it serves justice and fidelity, which he conceives of as other, more fundamental, values – provided, that is, that the principles express a “morally meaningful” conception of justice. Integrity thus understood allegedly binds officials to precedents in common law legal systems. So if Postema can succeed in his argument that integrity is a genuine moral value, he will have provided a moral justification for following precedent, even when the precedent is mistaken. Moreover, it will be a new kind of justification, an “internal justification” – one that provides a good reason for what Postema assumes is the rule of a precedent case. Success in his argument would be an important contribution to legal theory above and beyond the justification of precedent. Success would show that an interpretive conception of the nature of law also provides moral legitimacy to the resulting laws so conceived. Along with a stout defense of an interpretive theory of law – in particular, an integrity theory of law -- which Postema does not attempt, success would be the key to defending the widespread intuition that legal claims are not just formally normative, or normative in some special legal sense, but robustly – and so, morally – normative. Reasons for complying with law, properly understood, and for applying and enforcing it would be shown to transcend the realm of the merely prudential and the contingent. The conclusion of deep engagement with the details of Postema’s rich and intricate argument, unfortunately, reveals that it fails in its objective. Postema does not succeed in establishing that integrity is a distinct moral value of political communities. Moreover, the setting in which it is plausible that past principles morally justify following precedent is so special and (to some extent) ideal that Postema cannot be credited with offering a new justification for following precedent in actual common law systems, in the real world of the common law.

The debate between Dworkin and Fish on the nature of interpretation in general and literary interpretation in particular is somewhat peripheral to the inquiry into the nature of law. However, it is clear that sometimes in law there is what is referred to as interpretation (and construction) – of vague statutes, of unclear constitutional provisions, of apparent inconsistencies in written regulatory instruments such as administrative rules, and so on. Further, there is the phenomena within the common law tradition sometimes called “reinterpretation” of a precedent. In one common form, distinguishing, the source court ratio decidendi, generally taken to be applicable to a current case, is reinterpreted so as to be inapplicable to the current case. So it is worthwhile to examine the Fish-Dworkin debate on interpretation and inquire if its debate about literary interpretation in general and its inquiry into the chain novel analogy in particular is helpful or illuminating for the nature and structure of legal interpretation, understood more narrowly. My answer is “no.” The main reason is that both disputants are misled by the assumption that literary interpretation is so closely analogous to legal interpretation that the dissimilarities are irrelevant. The primary purpose of this chapter is to demonstrate the falsity of this assumption; and thus, to undermine attempts to base contentions about legal interpretation on contentions about literary interpretation.

Dworkin’s dignity framework has little explanatory value for one moral topic for which Dworkin apparently thinks it is especially suited: paternalistic intervention by one adult with another. Dworkin thinks the dignity framework has epistemic value for morality. I argue that it has little epistemic value regarding paternalism. Dworkin’s conception of dignity is too inchoate to help us to discover why and when individual paternalism is wrong, all things considered. It does somewhat better in illuminating why some types of individual paternalism are pro tanto wrong; but there are many other types of paternalism that are pro tanto wrong. Moreover, the conception of dignity cannot be refined the way Dworkin thinks it should be and retain any epistemic value on this matter. These results should be particularly troubling to Dworkin. There is a long tradition in Western philosophy of arguing against – and sometimes, restricted to certain circumstances, for – paternalism on the grounds of something called the “autonomy” of the subject of paternalism. While Dworkin is at pains to point out that dignity, as he conceives it, is not autonomy (JFH p. 212), dignity is not a wholly unrelated notion. Moreover, Dworkin’s idea of dignity seems to be a refined and elaborated version of what in Sovereign Virtue Dworkin calls “ethical integrity.” There, Dworkin uses the alleged primacy of ethical integrity to undermine some alleged justifications for paternalism. Hence, one would expect that a very natural – indeed, a central-- use of the conception of dignity developed in Justice for Hedgehogs would be to explain and illuminate moral claims about paternalism. That Dworkin’s conception of dignity largely fails to do so is, therefore, particularly important.

According to traditional Anglo-American criminal law, a person can be punished for an attempt that is impossible of success (e.g., putting sugar into the tea of an intended victim believing arsenic is being administered), but cannot be punished for preparing for some criminal activity in a manner that is likely to be effective (e.g., loading a gun in the presence of an intended victim). At first glance, this is an astonishing state of affairs and one that demands a justification. The purpose of this article is to demonstrate that a justification cannot be provided on principled grounds.

Older statutes sometimes alter the legal content of newer statutes in a way not apparent from the text of the newer statutes. The puzzle is how, even if a new statute is the choice of the current polis, the legal content created in part by the elderly statute is also the choice of the current polis. I consider several possible answers, including a legislative intent account and Dworkin’s, and argue that none of them is satisfactory. I then offer my own account, the De Re Account, which depends on distinguishing choosing under a description from choosing de re and noting that background norms and conventions sometimes determine what one does. In the case of legislation, because of the pragmatic norms for legal language and conventional practices against which a legislature acts, the legal content of the newer statute is chosen de re.

The social fact thesis, is, roughly, that law is ultimately a matter of social fact. Mark Greenberg and Kevin Toh have launched transcendental arguments against important or interesting general versions of the social fact thesis. Together, they can be read as posing a dilemma for the thesis. Suppose that many correct assertions of law are normative. Then, according to Toh, the considerations in virtue of which they are correct cannot ultimately be social facts, because the derivation of any normative conclusion requires a normative premise. Suppose that correct assertions of law are not normative. Then, according to Greenberg, they cannot state legal facts in virtue of social facts alone, because the very nature of law requires a particular kind of rational connection between determinants of legal facts and legal facts. Social facts cannot meet this demand; (non-legal) normative facts are needed. In short, Greenberg and Toh together claim that the social fact thesis is consistent with neither the existence nor the normativity of law. This essay meets their challenge.

This is an essay on aggravating circumstances. Rather than defend a thesis that particular things ought to be considered aggravating circumstances to wrongdoing, I assume general agreement about major sorts of aggravating circumstances; and I ask instead how they work and what their operation reveals about moral standards in general and minimal expectations in particular. In the final section of this essay, I briefly consider what can be said in defense of the commonsense principle that punishment should be more severe if a crime is committed under aggravating circumstances than if it is not.

In the sense in which "criminal harm" is used in this essay, to say an act is criminally harmful is not to imply that the act is against the law, but rather that there is a good reason why the act should be against the law. This essay is a guide to the literature to date on a number of questions surrounding criminal harm: (1) Should Criminal Law Be Restricted to Criminal Harm? (2) Evaluating Definitions of "Criminal Harm," (3) Four Families of "Criminal Harm" Definitions, and, very briefly, the matter of (4) Why Harm Justifies Prohibitions.

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases

This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune to the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication.

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience

I argue for the possibility of posthumous harm based on an account of the harm of murder. I start with the deep-seated intuition that when someone is murdered he (or she) is harmed (over and above the pain of injury or dying), and argue that Feinberg's account that assumes that harm is an invasion of an interest cannot plausibly accommodate this intuition. I propose a new account of the harm of murder: it is an irreversible loss of functions necessary for worthwhile existence. I suggest a (partial) loss analysis of harm in general, and then go on to apply it to posthumous harm and defend the idea that there can be posthumous losses.