Colin Bradley

Nicolas Cornell's Wrongs and Rights Come Apart advances two interlocking theses. The first is that the wrongs we do to others are not conceptually tied to their rights. We can wrong someone without violating her rights-or, indeed, without violating anyone's rights-and we frequently do. The second thesis is that our remedial concerns are more closely linked to wrongs than to rights. A complete picture of our moral lives therefore requires appreciating the sharp distinction between an ex-ante deliberative perspective in which we attend to others' rights and our corresponding obligations, and an ex-post remedial perspective in which we attend to the wrongs that we have done. If this is correct, then a lot of recent work in moral philosophy is on the wrong track. According to what I call the Obligation-Accountability Nexus (OAN), A has a moral obligation to X if and only if it is appropriate for some agent C to hold A accountable for failing to X. If Cornell is right, this thesis is false because sometimes A wrongs C without violating an obligation or violating a right, and it is nevertheless sometimes appropriate for C to hold A accountable when that happens. This Critical Notice reconstructs Cornell's arguments against OAN. But it shows that these arguments do not have as wide a reach as Cornell supposes. Cornell takes his arguments to count against all "rights-based views" that limit the class of persons who are "properly aggrieved" by bad or wrongful actions. This overlooks that there is a coherent and attractive version of a rights-based view that strongly restricts the class of the properly aggrieved, but rejects OAN as a general account of obligation and accountability. This version of a juridical view agrees with Cornell’s central claim that wrongs and rights come apart and indeed offers an independently attractive explanation of why the general thesis tethering rights and wrongs together is false. But on this overlooked alternative, we ought to maintain a distinctive juridical domain wherein wrongs consist in the violation of rights and we are liable to a special form of accountability only when we commit wrongs by violating rights. Crucially, this juridical view specifies what being liable (sometimes) involves: it involves being subject to accountability practices that, in the absence of certain legitimating features, would violate one’s freedom as independence. Because this freedom-threatening way of holding one another accountable is (sometimes) valuable, it makes sense to carve out a distinctive juridical, rights-based domain.

This chapter articulates and defends a republican interpretation of corrective justice theory. This view takes “independence” as the constitutive aim of a legal system but understands independence in a substantive and not merely formal way. Developing Kant’s conception of substantive independence as an ideal of equal citizens working together, this chapter argues that corrective justice requires accounting for the role that private legal entitlements play in causing and upholding forms of subordinating dependence that arise from our interdependent participation in a productive economy around work, housing, education, and public accommodation. It outlines an approach to defining the scope of private entitlements and a doctrine of exploitation consistent with corrective justice. Independence points to a non-distributive approach to justice that retains the core ideas of relationality and correlativity at the heart of private law. This alternative approach incorporates many of the considerations associated with public law and distributive justice while remaining within a corrective justice framework.

A recent view in legal epistemology holds that since knowledge is the standard for proof of criminal guilt, and since there is pragmatic encroachment on knowledge, contrary to current trial practice juries should be told the sentence a defendant would receive if convicted. We argue against this view. First, pragmatic encroachment on legal proof would produce distorted and unjust trial practice. Second, even granting pragmatic encroachment on legal proof would not of itself undermine the basic justification for withholding sentencing evidence from juries. We close on the false allure of epistemology-first arguments for legal reform.

Despite obvious similarities, Kant's and Fichte's philosophies of right contain sharply different understandings of the inadequacy of the state of nature and the basic justification for a coercive state. Both argue that rights in a state of nature are “provisional” or “incomplete” and that a coercive republic is necessary to guarantee freedom for people who cannot help interacting with one another. But for Fichte, the problem with the state of nature is that we cannot trust one another to protect our rights, whereas for Kant the problem is that no private person has the authority to enforce her rights over others. This chapter argues that Fichte's focus on trust prevents him from developing a consistently republican position that the state and rule of law really are necessary for freedom. Fichte is unable to explain why coercion is a necessary part of right, and so, from Kant's perspective, Fichte's Foundations of Natural Right fails to constitute a philosophy of right at all.