Publications
Some understand forgiveness as a normative power. Here we raise an objection to such views. They cannot explain certain instances when forgiveness is beyond our grasp. A victim of a wrong, despite thinking forgiveness is the right thing to do, and wishing that she could forgive, may find herself unable to do so. No good explanation of this impossibility, consistent with forgiveness being a normative power, is available.
This paper lays out a principle of consistency and shows how it justifies lenient sentences for juvenile offenders. The principle holds that, if the state disadvantages someone by applying the rationale of a legal rule, it has a reason of fairness to act on that same rationale when doing so would advantage them. As applied to juvenile leniency, the law systematically assumes that juveniles are diminished in their normative capacities. These rules, putting the penal context to one side, operate to disadvantage those juveniles for whom the assumption is false. This places the state under a duty, owed to these juveniles as a matter of fairness, to act on the same assumption when it would work to their advantage. Such juveniles are therefore owed lenient sentences.
Take two positions, both of which we take to be popular ways of thinking about law. First, some norm N is part of the law only if, and in virtue of, N being ultimately recognized or validated by the rule of recognition. Call this Hartian Orthodoxy. Second, statements about legal rights are best understood as claims about the existence of moral rights according to law. Call this legal perspectivalism. Here we show that the two are incompatible. Our argument is that, to account for certain arguments that mix legal and factual claims, perspectivalism must close the legal perspective according to some inference rule. As it happens, however, the only defensible candidates render perspectivalism incompatible with Hartian Orthodoxy.
The standard view of judicial motivation is pluralist. Many considerations, on this view, motivate judges to apply the law. Perhaps they do so out of fear, or greed, or—on some occasions—because it is the right thing to do. Here I defend a competing view. Judges must believe legal duties are moral duties. That belief explains their enforcement of those duties. Various features of legal practice support this inference. Judges often render decisions the merits of which they vehemently disagree. They take pride in the lawfulness of such decisions, and are angry at the lawlessness of others. Those features of legal practice are only intelligible if a decisive number of judges were to believe legal duties are moral duties. Judges must believe possess this belief for certain core features of legal practice to obtain.
According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons-and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law's constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.
Here I distinguish two things jurisprudence might take itself to explain. A theory of law can be either concept-first or practice-first. Concept-first theories investigate the concept we implicitly deploy to label some things as law and not others. Practice-first theories investigate directly, and uncover interesting features of, a particular social practice. That practice could be, for instance, the practice of lawyers and officials which prevails in the United States. I identify Hershovitz's Law Is a Moral Practice with a practice-first approach. Then I elaborate on the distinction and show that a practice-first approach is more defensible than many assume. Finally, I argue a practice-first approach rules out predictive theories of law.
In this article we distinguish two questions about judicial review. First, substance: what acts or decisions are properly subject to the grounds of review? Second, procedure: what acts or decisions are properly reviewable through the judicial review procedure? Then we settle both. Our answer to substance is that two principles determine the scope of the grounds of review, the first a principle of regularity, the second a principle of non-arbitrariness. Our answer to procedure is that acts or decisions are amenable to judicial review when two conditions are met, the first that the grounds of review apply, the second that no alternative procedure adequately enforces those grounds.
Ever since E v Home Secretary [2004] EWCA Civ 49, English lawyers have thought errors of fact to be reviewable under a general ground of review. Nowadays, E stands for the proposition that, as a matter of English law, factual mistakes—if they amount to unfairness—constitute a reviewable error of law. I shall show that the Court of Appeal could not have arrived at this decision. The remarks in E to this effect are therefore obiter. I then go on to show that the test in E is incapable of principled application. So the remarks in E proposing a general ground of review should be repudiated.