Michael Law-Smith

This chapter reconstructs G.A. Cohen’s influential critique of John Rawls’s theory of justice, focusing on Cohen’s claim that Rawls construed the scope of justice too narrowly. While Rawls held that the principles of justice apply to the basic structure of society—its fundamental social, political, and economic institutions—Cohen argued that these principles must also govern the personal decisions individuals make under those institutions. On Cohen’s view, everyday choices must be guided by an egalitarian ethos of justice. The chapter considers two key responses to this challenge: that Cohen’s view is overly demanding, and that Rawls’s own theory, properly interpreted, already entails such an ethos. In tracing this debate, the chapter highlights Cohen’s departure from Marxist orthodoxy, the moralist dimension of his account of distributive justice, and an underappreciated relational egalitarian strand in his political philosophy. Ultimately, it suggests that the gap between Rawls and Cohen may be narrower than is often assumed, raising broader questions about the relationship between liberalism and socialism in contemporary political thought.

The traditional account of the criminal trial holds that its fundamental purpose is to search for the truth—that is, the truth of whether the accused factually committed the alleged crime. However, purely truth-seeking accounts, as well as more nuanced side-constraint and pluralist accounts, fail to adequately explain the relationship between the epistemic principles and those of political morality shaping the criminal trial. In response, this article proposes that we understand the criminal trial first and foremost in terms of its purpose as a public procedure concerned with the legitimate use of coercive state powers against a particular person. Specifically, the criminal trial is a procedure that calls upon the state to provide a public justification for exercising its criminal law powers to convict and punish the accused. This account preserves the importance of establishing factual guilt because doing so is an essential part of the state’s justificatory burden.

This article provides a justification for the often-criticized tort of malicious prosecution. It begins by discussing the Supreme Court of Canada’s malicious prosecution caselaw and by reconstructing the Court’s expressed policy-based account of the tort. This policy-based account raises three concerns: (1) it renders the malice standard arbitrary, (2) it fails to explain why malicious prosecutors should be held accountable as a matter of private rather than public law, and (3) it leaves the source of the plaintiff’s private right mysterious. However, the Court’s jurisprudence supports a more principled account, specifically one that focuses on the nature and limits of a prosecutor’s public office. This office-based account responds to the above concerns while affirming the Court’s view that malice is the correct standard of fault and, more generally, that malicious prosecution is a distinctly private wrong.

This article argues that the use of algorithmic sentencing in the criminal justice system can be in tension with the state’s duty to respect the human dignity of offenders. Sentencing law in many legal systems requires judges to make complex normative judgments about a person, their conduct, and how the state may treat them in light of that conduct. These judgments implicate an offender’s dignity because they engage with their self-understanding as a moral agent and their sense of worth as a human being. However, algorithms and other forms of predictive artificial intelligence do not engage in anything like the kind of normative reasoning that sentencing law demands. Accordingly, when the state substitutes one or more elements of this normative reasoning with an algorithm’s output, it risks failing to respect the offender’s moral status. Treating the normative judgments sentencing law demands as mere empirical predictions is not only a category mistake but a failure to justify the sentence and to recognize the offender as a moral agent.

Most people think that the state may incarcerate those who commit serious crimes. Most also think that a criminal justice system characterized by mass incarceration is unjust. Yet a state could bring about mass incarceration while only incarcerating those who commit serious crimes. In response to this puzzle, this paper offers a framework to explain how mass incarceration can be unjust even if each individual punishment that makes it up is independently justifiable. It argues that resolving this puzzle requires adopting a holistic approach to criminal law focusing on its relationship to the broader political order rather than narrowly on the moral quality of individual punishments. This approach reveals how mass incarceration is presumptively in tension with the state’s claim to legitimate public authority. In all but exceptional circumstances, mass incarceration involves the state using its power to punish in ways that are inconsistent with the public purposes that justify and constrain that power.

Some moral philosophers argue that our personal obligations to help address the collective economic, environmental and intergenerational crises of our time are imperfect duties. According to this view, we must all do our part to help resolve these crises, but each of us enjoys some latitude to decide how and when to do so. However, given the flexibility built into these duties, it is no surprise that many of us fail to take meaningful steps to act on them. In response to this problem, it has been argued that we should institutionalize our imperfect duties and so transform them into perfect duties – that is, legally enforceable duties that provide us each with specific guidance on what we must do. This paper explores whether this proposal is institutionally and normatively coherent as a matter of law. I argue that such perfected duties fit better within the institutions of public law rather than private law, but that some normative concerns remain for justifying such duties as legitimate public law duties.