Colin Bradley

Nicolas Cornell’s Wrongs and Rights Come Apart argues that accountability practices are rooted in wrongs, that obligations are rooted in rights, and that these are two distinct relations. Cornell’s argument convincingly pushes back against a widely held family of views in moral and legal philosophy according to which there is a necessary conceptual relation between, on the one hand, rights and obligations, and, on the other, wrongs and accountability practices. This is the Obligation-Accountability Nexus (OAN). But Cornell frames his arguments against the OAN as arguments against all ‘rights-based’ or ‘juridical’ views. This Critical Notice argues that this is a mistake. There is a coherent rights-based view that rejects the OAN but nevertheless posits a restricted juridical domain in which rights and wrongs are contingently correlated. This overlooked juridical view gives an independently attractive argument against the OAN and yields more compelling accounts of moral deliberation and moral community.

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.