This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.

Philosophers have offered many arguments to explain why historical injustices require reparations. This paper raises an unnoticed challenge for almost all of them. Most theories of reparations attempt to meet two intuitions: (1) Reparations are owed for a past wrong and (2) the content of reparations must reflect the historical injustice. I argue that necessarily no monistic theory can meet both intuitions. I do this by showing that any theory that can meet intuition (1) necessarily cannot also meet intuition (2). (...) This result suggests that a theory of reparations must either sacrifice one of the two intuitions or be pluralist. I argue that we ought to prefer the pluralist over the monistic theory. I sketch the pluralist theory and I defend it by considering an objection about the way it can resolve conflicts. (shrink)

In this paper, I assess critically the recent debate on corrective duties across moral and legal philosophy. Two prominent positions have emerged: the Kantian rights-based view (holding that what triggers corrections is a failure to respect others' right to freedom) and the so-called continuity view (correcting means attempting to do what one was supposed to do before). Neither position, I try to show, offers a satisfactory explanation of the ground (why correct?) and content (how to correct?) of corrective duties. In (...) the final section, I suggest that it is probably better to restrict the label “corrective duties” to duties generated by interpersonal wronging. (shrink)

I aspire to answer two questions regarding the concept of a corrective duty. The first concerns what it means to wrong others, thus triggering a demand for corrections (the ground question). The second relates to the proper content of corrective duties. I first illustrate how three prominent accounts of corrective duties—the Aristotelian model of correlativity, the Kantian idea that wronging corresponds to the violation of others’ right to freedom, and the more recent continuity view—have failed to answer the two questions (...) satisfactorily. I then introduce my proposal, which holds that we wrong others when we fail to treat their status as moral agents as a source of stringent constraints on our action. I call it the moral neglect account. Once we have identified a common aim of corrective duties (counterbalancing moral neglect), we can fill their content in the various contexts in which wronging has occurred. I conclude by observing that it is not the primary role of corrective justice to assign responsibilities for damage reparations; in fact, requests for compensation make more sense if framed in distributive rather than corrective terms. (shrink)

According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about legal rules. (...) The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them. (shrink)

It is commonly held that “ought implies can.” If so, what constraints does that place on the law? Having provided an argument which allows the maxim to be used by lawyers, I consider the application of that argument to both primary and remedial legal duties. This, it turns out, gives us some reason to reconsider whether the maxim is sound. Further, even if the maxim is sound, it has less purchase on remedial duties than is commonly supposed.

Many real-world agents recognise that they impose harms by choosing to emit carbon, e.g., by flying. Yet many do so anyway, and then attempt to make things right by offsetting those harms. Such offsetters typically believe that, by offsetting, they change the deontic status of their behaviour, making an otherwise impermissible action permissible. Do they succeed in practice? Some philosophers have argued that they do, since their offsets appear to reverse the adverse effects of their emissions. But we show that (...) they do not. In practice, standard carbon offsetting does not reverse the harms of the original action, nor does it even benefit the same group as was harmed. Standard moral theories hence deny that such offsetting succeeds. Indeed, we show that any moral theory that allows offsetting in this setting faces a dilemma between allowing any wrong to be offset, no matter how grievous, and recognising an implausibly sharp discontinuity between offsettable actions and non-offsettable actions. The most plausible response is to accept that carbon offsetting fails to right our climate wrongs. (shrink)

There is widely thought to be a proportionality constraint on harming others in self-defense, such that an act of defensive force can be impermissible because the harm it would inflict on an attacker is too great relative to the harm to the victim it would prevent. But little attention has been given to whether a corresponding constraint exists in the ethics of compensation, and, if so, what the nature of that constraint is. This article explores the issue of proportionality as (...) it applies to the liability to compensate. The view that some perpetrators are not liable to pay full compensation because doing so would be disproportionately burdensome is clarified and defended, and it is asked what view we should adopt instead. A key step in that inquiry is an argument that someone is liable to bear the cost of compensating for an injury if and only if she would have been liable to bear that same cost in defense against that same injury ex ante. (shrink)

I explore how agent-regret and its object—faultlessly harming someone—can call for various responses. I look at two sorts of responses. Firstly, I explore responses that respect the agent’s role as an agent. This revolves around a feature of “it was just an accident”—a common response to agent-regret—that has largely gone ignored in the literature: that it can downplay one’s role as an agent. I argue that we need to take seriously the fact that those who have caused harms are genuine (...) agents, to ignore this fails to allow these agents to move on. Secondly, following Sussman and MacKenzie, I explore responses that benefit the victim. I argue that we should strive to understand how to configure these responses in a way that does not blame the agent. To do this I look at the role of actions in our self-understanding, as people who have done particular things. I end by briefly considering the ways in which tort law and restorative justice might help us to understand how to appropriately respond to accidentally harming someone. I urge that we need to take this as a starting point to find a better way to respond to the agents of faultless harms. (shrink)

The normative mechanics of promising seem complex. The strength and content of promissory obligations, and the residual duties they entail upon being violated, have various prima facie surprising features. We give an account to explain these features. Promises have a point. The point of a promise to φ is a promise-independent reason to φ for the promisee’s sake. A promise turns this reason into a duty. This explains the mechanics of promises. And it grounds a nuanced picture of immoral promises, (...) an argument against promissory bare wrongings, and a constraint on theories of why we have promissory obligations at all. (shrink)

Control accounts of moral responsibility argue that agents must possess certain capacities in order to be blameworthy for wrongdoing. This is sometimes thought to be revisionary, because reflection on our moral practices reveals that we often blame many agents who lack these capacities. This paper argues that Control accounts of moral responsibility are not too revisionary, nor too permissive, because they can still demand quite a lot from excused wrongdoers. Excused wrongdoers can acquire duties of reconciliation, which require that they (...) improve themselves, make reparations for the harm caused, and retract the meaning expressed in the original wrong. Failure to do these things expresses a lack of regard for the victims, and can make those wrongdoers appropriate targets of blame. (shrink)

In most cases, liability in tort law is all-or-nothing—a defendant is either fully liable or not at all liable for a claimant's loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant's loss only to the degree to which the defendant's wrongdoing contributed to the causing of the loss. I ground this principle in a conception of tort law as a system of corrective justice and use (...) it to critically evaluate different mechanisms for “limiting” liability for consequences of wrongdoing and for “apportioning” liability between multiple wrongdoers. (shrink)

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this (...) question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law. (shrink)

Up until recently, most legal philosophers have argued that an action is a token of sanctioning if, and only if, (i) its performance brings about unwelcome consequences to the targets, and (ii) it is performed as a response to the breach of a duty. In this paper I take issue with this account. I first add some qualifications to it in order to present it in its most plausible form. After doing this, I advance a series of hypothetical cases which (...) suggests that this account fails. I then propose a new account of sanctioning, whereby an action is a token of sanctioning if, and only if, it is performed in an appropriate context and is apt for punishing wrongdoers. (shrink)

Standing is a peculiar norm, allowing for deflecting that is rejecting offhand and without deliberation interventions such as directives. Directives are speech acts that aim to give directive-reasons, which are reason to do as the directive directs because of the directive. Standing norms, therefore, provide for deflecting directives regardless of validity or the normative weight of the rejected directive. The logic of the normativity of standing is, therefore, not the logic of invalidating directives or of competing with directive-reasons but of (...) ‘exclusionary permission’. That is, standing norms provide for permission to exclude from practical deliberation directive-reasons if given without the requisite standing, regardless of their normative weight. As such, standing is a type of second-order norm. Numerous everyday practices involve the deflection of directives, such as pervasive practices of deflecting hypocritical and officious directives. Of various possible models, the one that best captures the normative structure of these practices of deflection is the standing model. Accordingly, the normativity of standing is pervasive in our everyday practices. Establishing that standing, although a neglected philosophical idea, is a significant and independent normative concept. (shrink)

Why is it wrong to punish criminals who have been entrapped by the state? The paper begins by presenting some criticisms of existing answers to this question. First, they fail to put the target, or victim, of entrapment at the centre of the moral explanation. Second, they fail to account for the intuitive relation between the reasons not to entrap and the reasons not to punish. Third, they struggle to account for the existence of agent-neutral reasons not to punish entrapped (...) offenders. Lastly, they are ill-equipped to explain why entrapment seems problematic also outside the legal context. In response, the paper develops a novel account of entrapment: the Manipulation Account. According to this, entrapment always involves a particular kind of manipulation (manipulation-by-hidden-intentions) which morally taints punishment. In short, I suggest that both the initial entrapment and the subsequent punishment involve wrongful manipulation. Lastly, the paper presents some untraditional, but ultimately welcoming, implications of the account. (shrink)

Michael Moore and I agree about the moral importance of how our actions turn out. We even agree about some of the arguments that establish that moral importance. In Causation and Responsibility, however, Moore foregrounds one argument that I do not find persuasive or even helpful. In fact I doubt whether it even qualifies as an argument. He calls it the “experiential argument.” In this comment I attempt to analyze Moore's “experiential argument” in some detail and thereby to bring out (...) why it does not help. In the process I raise some problems about the rationality of the emotions, which may be where Moore and I part company. We both believe that emotions should be taken more seriously by moral philosophy. But apparently we have radically different views about what this means. (shrink)

What is the clean hands defense (CHD) normatively about? Courts designate court integrity as the CHD's primary norm. Yet, while the CHD may at times further court integrity, it is not fully aligned with court integrity. In addition to occasionally instrumentally furthering certain goods (e.g., court legitimacy, judge integrity, deterrence), the CHD embodies two judicially undetected norms: retribution and tu quoque (“you too!”). Tu quoque captures the moral intuition that wrongdoers are in no position to blame, condemn, or make claims (...) on others who are guilty of similar or related wrongdoing. The CHD shares the structure of the tu quoque: both are doctrines of standing that deflate the illocutionary force (and not the truth-value) of normative speech acts directed against wrongdoers by those guilty of similar or connected wrongdoing. The CHD also exhibits retributive logic: it sanctions plaintiffs by reason of their wrongdoing and manifests the retributive principle that “punishment must fit the crime.” -/- Copyright © Cambridge University Press 2011. Also available at http://journals.cambridge.org/action/displayJournal?jid=LEG. (shrink)

Romantic partnerships are typically among the most important goods in our lives. But love sometime ends, and so too do relationships. Divorcing partners are particularly vulnerable to being wronged and harmed. The aim of this paper is to develop an ethics of divorce, by establishing that divorce is a condition for the possibility of the distinct value of romantic partnerships. Different sets of rights are specified here: the divorcee's right to explanation, the right to participation and the right to transitional (...) goods; and the divorcer's right to relational freedom. Violations of these rights indicate the distinct wrongs and harms of divorce. The paper then explains the corresponding duties in divorce that might avoid these wrongs and mitigate these harms, and highlights the distinct status of these duties: while they continue to be special, they are residual duties grounded in the fact that the partners once committed to their partnership. (shrink)

If D commits a wrong against V, D typically incurs a corrective duty to V. But how should we respond if V has false beliefs about whether she is harmed by D’s wrong? There are two types of cases we must consider: those in which V is not harmed but she mistakenly believes that she is those in which V is harmed but she mistakenly believes that she is not. I canvass three views: The Objective View, The Subjective View and (...) The Mixed View. The Objective View holds that V’s claim depends on the correct account of harm, rather than her false beliefs, and so D has a duty to offer damages to V in but not in in order to compensate her. The Subjective View holds that, for broadly anti-perfectionist reasons, V’s claim depends on her sincere beliefs, even if they are mistaken, and so D has a duty to compensate V in but not in. The Mixed View holds that we should defer to her beliefs in but not in, so D has a duty to compensate her in both cases. In this article, I argue that we should accept The Mixed View. (shrink)

© The Author 2018. Published by Oxford University Press on behalf of The Analysis Trust. All rights reserved. For Permissions, please email: [email protected] article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model...Philosophy of law was until recently dominated by abstract investigation into the nature of law, a pursuit known as ‘general jurisprudence’. In this way, it resembled a branch of metaphysics or mid-twentieth century philosophy of mind, seeking to uncover the essential properties (...) of a general and multiply realizable phenomenon. Today, philosophers study law with a sharper focus, and with a more specialized lens – that of ethicists, for example, or epistemologists, or philosophers of action.That is not to say there has been a drop in groundbreaking work in general jurisprudence (see, for... (shrink)

Humans have a fundamental need to belong. This, need, as Kimberley Brownlee argues in her book Being Sure of Each Other grounds the human right against social deprivation. But in addition to having a human right against social deprivation, we also have a right to associational freedom, which is grounded in our right to autonomy. We cannot be forced into relationships; we are free to choose our friends and loved ones.? In this paper I discuss what our right to associational (...) freedom morally permits us to do when are already in an intimate relationship and, relatedly, what our relationship-dependent duties require of us in such cases. What exactly are the constraints on our right to associational freedom? And what is the content and scope of our relationship-dependent duties, given that our right to associational freedom conflicts with the fulfillment of these duties?? After providing some clarifications as to how we should understand intimate relationships that have ended, I will first highlight what relationship-dependent duties are and how they correlate with a right to associational control. I will then discuss several break-up scenarios, the aim of which is to determine the conditions that justify constraints being imposed on the right to associational freedom and to delineate the scope of relationship-dependent duties. (shrink)

:Strict liability in tort law is thought by some to have a moral counterpart. In this essay I attempt to determine whether there is, in fact, strict liability in the moral domain. I argue that there is, and I critically evaluate several accounts of its normative foundations before suggesting one of my own.

Hohfeld is one of the best-known analytical philosophers to have written in the area of private law in western, common law legal systems in the twentieth century, but it is sometimes suggested that his scheme has had little impact on the law. One hundred years after his death, this article assesses the man and the impact of his work, noting a resurgence of interest in him amongst both commentators and courts. It suggests that there are two good reasons why his (...) analytical philosophy is more relevant and useful today than ever - its potential to discipline and rationalise an increasingly insistent and ubiquitous rhetoric of rights; and the assistance it can provide in unpicking the complexity of the relationship between private law and the modern administrative state. (shrink)

This paper argues that the positive allocative decisions paradigmatically carried out by the application of legal rules are a necessary condition for arguments about particular justice (i.e., distributive and commutative justice) to make sense. If one shifts the focus from the distinction between distributive and commutative justice to what the two aspects of particular justice are for, namely, providing criteria to judge the allocation of goods, it becomes clear that the distinction is conceptually unstable. The paper argues that stabilizing the (...) distinction is worthwhile and that this can only be accomplished by the introduction of positive allocation schemes. (shrink)

According to an appealing and common view, the moral status of an action – whether it is wrong, for example – is sometimes important in itself in terms of the moral status of other actions – especially those that respond to the original action. This view is especially influential with respect to the criminal law. It is accepted not only by legal moralists but also by adherents of the harm principle, for example. In this paper, I argue against this view. (...) The main arguments emphasize the distinctions between the moral status of actions, consequences, and agents. I argue that what matters, in terms of other actions, is not the moral status of the original action but rather other factors that may be confused with it, such as the moral status of its consequences – whether they are good or bad – and the moral status of the agent – whether she is praiseworthy or blameworthy. The intuitive appeal of the common view is, I argue, at least partly due to a conflation of these factors. Most importantly, once we recall the distinctions between these factors, we can see more clearly that this view lacks a compelling rationale. Or, at least, that it is based on assumptions that, first, are much more controversial than their conclusion, and, second, do not support every aspect of this view – and thus do not offer a unified foundation for this view. (shrink)

Freedom of contract and corrective justice are considered to be the basic principles governing contract law. However, many contemporary legal orders implement various policy goals into private law. The regulatory private law of the European Union is the most striking example of such a trend. This article aims at reconciling the corrective justice theory of private law and the principle of freedom of contract with the regulatory dimension of the EU law. The main argument is that the meaning of the (...) concept of harm, one that is crucial to the principle of corrective justice, should be understood broadly so that it can transform the corrective justice theory from a monistic one into a pluralistic one. (shrink)

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and (...) mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration. (shrink)

Volume 10, Issue 2, June 2019, Page 300-312.

The rule against penalty clauses in contract law sits uneasily with the promise theory of contract. According to the rule, if contracting parties agree a monetary remedy for breach which is substantially in excess of what would be required to compensate the claimant then that remedy is not enforceable. If contracts enforce promises however one would expect to see these clauses enforced. The rule appears therefore to be an example of a contract doctrine that diverges from promise. Promise theorists tend (...) to respond to divergent doctrines in one of three ways, they either: seek to accommodate these doctrines within the promise principle, or they repudiate them, or finally they justify these doctrines on the basis of the specific legal context within which they operate.I argue that in the case of the penalties rule all of these standard responses would fall short. These responses are inadequate because they are premised on the claim that the promise principle is the only general moral principle relevant to evaluating contract law, or that it has overriding justificatory priority when it conflicts with other moral concerns. I argue that a richer conception of the moral principles that bear on contract and how they interact offers a way forward for justifying the rule. (shrink)

ABSTRACTPeople have procedural rights because states are under a duty of political morality to provide them with fair procedures for settling disputes about the application of the laws. This obligation flows from the state's duty to treat each person as a free and equal member of the legal order. Yet adherence to procedural rights can impede accuracy in fact-finding, which in turn can result in poor protection for substantive rights. So the state also has a duty to provide a reasonable (...) degree of accuracy in fact-finding. The legal order should therefore strive to improve the accuracy of fact-finding, within the constraints imposed by procedural rights people have. Nevertheless, the duty to provide reasonably accurate procedures is subordinate to the duty to provide procedural rights because the settlement of disputes among free persons must be conducted in a manner that respects their status as free persons. (shrink)

Several legal philosophers have argued that the principle of corrective justice provides the best explanation of various areas of the law—especially the law of torts. On the other hand, some philosophers of law and many economists of law have argued that the principle of corrective justice is not an independent principle of justice. I call this the problem of dependency. If the critics are right, the principle of corrective justice cannot be an explanation of a large area of our law (...) as it claims to be.I argue that the increasingly complex forms of the problem of dependency that the critics have proposed lose their force once we have a better understanding of the principle of corrective justice and its relationships with other principles. The principle of corrective justice does not serve a conception of distributive justice or efficiency and can provide an explanation of a large area of our law despite the criticism. It does so independently as a principle of justice that is reflected in our legal practice. (shrink)