Dr Marie Newhouse

Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.

Pauline Kleingeld has offered a compelling interpretation of the Principle of Autonomy, according to which Kant is positing an analogy between: 1) an individual agent’s relation to their maxim; and 2) a political legislator’s relation to their legislation. Here, I explain why Sorin Baiasu is right to conclude that this analogy is unthreatened by later changes to Kant's political theory and offer additional considerations in support of his thesis. Then, I suggest that popular English translations of Kant’s Formula of Autonomy have obscured a possibility that we should consider: Kant may have intended to compare a human will to the united general will of the people itself rather than to the will of a public official or institution. If this alternative reading were correct, then Kant’s evolving views on the significance of elections could have no possible relevance to the Formula of Autonomy.  

In Kant's legal and political writings, juridical laws are supposed to be categorical imperatives: unconditional rational requirements. But how can a statute passed by a legislative body generate an unconditional rational requirement for us to obey? I argue that Kant was right: juridical laws enacted by legislatures are categorical imperatives, and the external incentives that the state links to its legal commands (i.e. threatened punishments) play a critical role in making them so. Indeed, statutory commands must be categorical imperatives if they are to establish juridical laws, and statutes that fail to establish juridical laws do not obligate us to obey their terms.

This article develops an account of the nature and limits of the state’s legislative authority that closely attends to the challenge of harmonising Kant’s ethical and juridical theories. Part one clarifies some key Kantian concepts and terms. Part two explains the way in which the state’s three interlocking authorities—legislative, executive, and judicial—are metaphysically distinct and mutually dependent. Part three describes the emergence of the Kantian state and identifies the preconditions of its authority. Part four offers a metaphysical model of the Kantian state and uses it to argue that the activity of juridical lawgiving is an act of the omnilateral will itself. Part five argues that the legislative authority is limited in the sense that it does not include the capacity to create juridical laws that are conceptually incompatible with the idea of universal external freedom. Part six argues that my proposed account of the legislative authority is wholly consistent with that authority’s exclusive lawgiving capacity and does not threaten the possibility of ‘distributive justice’—the legal finality that is the of a civil condition.

This special volume of Kantian Review is devoted to the exploration of Kant's legal philosophy. Contributing authors: Arthur Ripstein, Robert Alexy, Jacob Weinrib, Thomas Mertens, M. E. Newhouse, Ben Pontin, and Peter Sutch.

In , Rawls concludes that individuals in the original position would choose to adopt a system of democratic equality governed by his two principles of justice. However, Rawls mistakenly defines the possibility space within which individuals in his original position must make their choice. An alternative account of the possibility space created by Rawls’s original position reveals that a system of liberal equality, according to which distributive shares would be determined by market processes, would be preferred by risk-averse individuals. However, such individuals would guard against the erosion of the social bases of self-respect by including a social safety net among the basic equal liberties secured by Rawls’s first principle of justice.

This article proposes a two-standard interpretation of Immanuel Kant’s Universal Principle of Right that tracks the two ways—civil and criminal—in which actions can be legally wrong. This article demonstrates in three ways that the principle is a plausible and resilient account of the essential distinction between civil and criminal wrongdoing. First, the Universal Principle of Right correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, which traditionally is not. Third, it justifies differences between the way in which we determine criminal punishments and the way in which we measure civil remedies. Moreover, as interpreted, the Universal Principle of Right offers a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state’s criminal lawmaking authority.

Dennis F. Thompson developed a theory of “institutional corruption” in order to explain a phenomenon that he believed the Congressional ethics rules failed to address: Congress’ systematic deviation from its proper purpose as a consequence—not merely of individual wrongdoing—but of the influence of several general systemic features of the legislative process. Researchers at Harvard University’s Edmond J. Safra Center for Ethics have recently deployed the language of institutional corruption broadly in analyses of various other public and private institutions, such as regulatory agencies, banks, pharmaceutical companies, and think tanks. The states of affairs that researchers have identified as “institutional corruption” fall into four categories: 1) breaches of fiduciary duty, 2) fraud or otherwise unfair commercial practices, 3) destructive firm behavior, and 4) mistake, inefficiency, or incompetence. This Article reveals that only the first of these represents a true application of Dennis F. Thompson’s theory of institutional corruption, which was originally developed in the context of Congressional ethics. Research projects that deploy the terminology of institutional corruption in non-fiduciary contexts are certainly valuable, but they do not address the subject matter of institutional corruption, properly understood.

This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant's Universal Principle of Right tracks the two ways--material and formal--in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant's standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the action in question has been prohibited by statute, Kant's legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, according to which we may incur liabilities through our voluntary choices.

This article evaluates the American rule and a loser pays reform proposal on the basis of how well they serve a set of broadly attractive criteria. If the loser pays reform proposal is superior to the American rule on these grounds, it ought to command broad support. Part I of this paper describes the current state of the legal marketplace and how some of its participants profit from abusing it. Part II summarizes the best theoretical research into what kinds of effects we could expect loser pays to have on litigation. Part III builds on the hypotheses developed in Part II by examining evidence from two important loser pays experiments here in America. Part IV explores the possibility of preserving access to justice for plaintiffs with reasonably strong lawsuits through a system of litigation insurance. Part V offers a specific loser pays reform proposal and guidelines for its implementation.

This article analyses the likely effect of codifying the traditional criminal law interpretive canon of 'lenity'. In the best case scenario, courts would respond to the codification of lenity by recognizing two rules of lenity instead of one: the new statutory lenity would guide inquiries into legislative intent in a limited way, and the old judicial canon would protect due process rights and police the separation of powers. If competently pursued, this approach would result in marginally greater protection for criminal defendants; they would retain whatever constitutional protection the judicial canon currently provides and receive an additional boost from statutory lenity's status as evidence of congressional intent. I am concerned, however, that it is unrealistic to expect judges and criminal defense lawyers to regularly juggle two lenities for only marginal benefit. If they failed to do so, the new statutory lenity might cause the old judicial canon of lenity to fall even further by the wayside.