Oxford Legal Philosophy – serie

The law enables private parties to undo the wrongs committed against them, allowing victims to seek redress. A distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. Through analysis of this key idea, The Right of Redress helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine.When a wrong is remedied, the authorship of that remedy matters. The justice in private law is sensitive to a right holder's authorship, and understanding how solves a number of legal theory puzzles. Many forms of redress are only available with state assistance, and a full account of private law requires an account of the state's responsibility to assist. It also requires an explanation of those cases in which the state declines to assist. Prior accounts have drawn on Kantian principles or a Lockean social contract theory, where The Right of Redress, drawing on public fiduciary theory, develops a distinctive account of the state's role.This book offers a new take on various modern features of the private law landscape, ranging from equity, to damage caps, to arbitration, to corporate claims, to class actions. The Right of Redress thus offers a pathbreaking account of the justice in private law, the political theory that underlies it, and the contemporary features that shape our rights of redress today.

From A Realist Point of View combines new essays with revised versions of the most important recent work of preeminent legal realist Brian Leiter. This collection offers a systematic and philosophically ambitious account of legal realism and links it, for the first time, to political realism. Throughout, Leiter engages with various legal realist traditions (American, Scandinavian, Italian, French) and realist thinkers, from Thucydides to Nietzsche. Part I, "Realism about Law and Legal Reasoning," examines the problem of theoretical disagreement, the relation between legal positivism and realism, and the realist theory of precedent, concluding with a penetrating critique of the recent metaphysical inflation of general jurisprudence in America. Part II, "Realism about Courts, Politics and Morality," brings the realistic perspective to bear on courts and democracy, as well as on morality (understood as a culturally variably human artifact) and moral philosophy (treated as ethnographic data, irrelevant to political practice). It concludes with case studies of two realist political thinkers, Marx and Foucault.

This book defends an original and pluralist theory of when and why discrimination wrongs people. Starting from actual legal cases in which claimants have alleged wrongful discrimination by other people or by the state, Sophia Moreau argues that we can best understand these people's complaints by thinking of them as complaints about different ways in which they have not been treated as equals in their societies--in particular, through unfair subordination, through the violation of their right to a particular deliberative freedom, or through the denial to them of access to a basic good, that is, a good that this person must have access to if they are to be, and to be seen as, an equal in their society. The book devotes a chapter to each of these wrongs, exploring in detail what unfair subordination consists of; what deliberative freedoms are, and when each of us has a right to them; and what it means to deny someone access to a basic good. The author explains why these wrongs are each distinctive, but are each a different way of failing to treat some people as the equals of others. Finally the author argues that both the state and we as individuals have a duty to treat others as equals, in these three specific senses.

What are the aims of legal philosophy? Which questions should it seek to address? How should legal philosophers approach and engage with their subject-matter, and what constraints are incumbent on them as they do so? What are the criteria of success of theories of law, and how do we know if they have been met? Can there be progress in legal philosophy?In Elucidating Law, Julie Dickson addresses these and other questions concerning the methodology, or the philosophy, of legal philosophy and offers her own distinctive response to them. The book advocates that legal philosophers should espouse an approach that Dickson terms 'Indirectly Evaluative Legal Philosophy.' This distinctive approach can facilitate legal philosophers' understanding of aspects of the nature of law, whilst avoiding prematurely or inappropriately regarding law as inherently morally valuable. Law is a powerful, systemic, and institutionalized social tool. It should be understood in a manner appropriate to its character.

Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent group intention. This book argues that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. The book argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation. Developing a robust account of the nature and importance of legislative intention, the book represents a significant contribution to the literature on deliberative democracy that will be of interest to all those thinking about legal interpretation and constitutional theory.

Contemporary political and legal theory typically justifies the value of political and legal institutions on the grounds that such institutions bring about desirable outcomes - such as justice, security, and prosperity. In the popular imagination, however, many people seem to value public institutions for their own sake. The idea that political and legal institutions might be intrinsically valuable has received little philosophical attention. Why Law Matters presents the argument that legal institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value.Harel advances the argument in several ways. Firstly, he examines the value of rights. Traditionally it is believed that rights are valuable because they promote the realisation of values such as autonomy. Instead Harel argues that the values underlying (some) rights are partially constructed by entrenching rights. Secondly he argues that the value of public institutions are not grounded (ONLY) in the contingent fact that such institutions are particularly accountable to the public. Instead, some goods are intrinsically public; their value hinges on their public provision. Thirdly he shows that constitutional directives are not mere contingent instruments to promote justice. In the absence of constitutional entrenchment of rights, citizens live "at the mercy of" their legislatures (even if legislatures protect justice adequately). Lastly, Harel defends judicial review on the grounds that it is an embodiment of the right to a hearing.The book shows that instrumental justifications fail to identify what is really valuable about public institutions and fail to account for their enduring appeal. More specifically legal theorists fail to be attentive to the sentiments of politicians, citizens and activists and to theorise public concerns in a way that is responsive to these sentiments.

The law enables private parties to undo the wrongs committed against them, allowing victims to seek redress. A distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. Through analysis of this key idea, The Right of Redress helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine. When a wrong is remedied, the authorship of that remedy matters. The justice in private law is sensitive to a right holder's authorship, and understanding how solves a number of legal theory puzzles. Many forms of redress are only available with state assistance, and a full account of private law requires an account of the state's responsibility to assist. It also requires an explanation of those cases in which the state declines to assist. Prior accounts have drawn on Kantian principles or a Lockean social contract theory, where The Right of Redress, drawing on public fiduciary theory, develops a distinctive account of the state's role. This book offers a new take on various modern features of the private law landscape, ranging from equity, to damage caps, to arbitration, to corporate claims, to class actions. The Right of Redress thus offers a pathbreaking account of the justice in private law, the political theory that underlies it, and the contemporary features that shape our rights of redress today.

Ranging over a host of issues, Property Rights: A Re-Examination pinpoints and addresses a number of theoretical problems at the heart of property theory. Part 1 reconsiders and rejects, once again, the bundle of rights picture of property and the related nominalist theories of property, showing that ownership reflects a tripartite structure of title: the right to immediate, exclusive, possession, the power to license what would otherwise be a trespass, and the power to transfer ownership. Part 2 explores in detail the Hohfeldian theory of jural relations, in particular liberties and powers and Hohfeld's concept of 'multital' jural relations, and shows that this theory fails to illuminate the nature of property rights, and indeed obscures much that it is vital to understand about them. Part 3 considers the form and justification of property rights, beginning with the relation an owner's liberty to use her property and her 'right to exclude', with particular reference to the tort of nuisance. Next up for consideration is the Kantian theory of property rights, the deficiencies of which lead us to understand that the only natural right to things is a form of use- or usufructory-right. Part 3 concludes by addressing the ever-vexed question of property rights in land.

Who, or what, is a 'person' according to the law? How did this understanding of personhood come about? In the twenty-first century, environmentalism, animal rights, artificial intelligence, and corporate personhood have compelled us to consider these questions once again. Legal personhood is a foundational concept of Western legal thought and A Theory of Legal Personhood seeks to go beyond contemporary debates, challenging our very understanding of legal personhood itself.Drawing on extensive research, scholarship, legislation, and court cases from around the globe, this book offers readers -- with or without previous knowledge -- new insights into legal personhood. It scrutinizes how personhood came to be understood synonymously with the holding of legal rights. It then posits that a better understanding of legal personhood is as a cluster property. Finally, it applies this new theory to explain and structure the numerous debates surrounding legal personhood.

The Coercion Thesis has been a subject of longstanding debate, but legal positivist scholarship over the last several decades has concluded that coercion is not necessary for law. Coercion and the Nature of Law is concerned with reviving the Coercion Thesis, presenting a strong case for the inherently coercive nature of legal regulation, and arguing that anything properly characterized as a legal system must back legal norms prohibiting breaches of the peace with the threat of a coercive sanction. Himma presents the argument that people are self-interested beings who must compete in a world of scarcity for everything they need to survive and thrive. The need to compete for resources naturally leads to conflict that can breach the peace, and threatens the ability to live together in a community and reap the social benefits of cooperation. Law only functions as a system if it can maintain the peace enough for community to continue, and thus systems of law cannot succeed in doing anything that we want systems of law to do unless they back laws prohibiting violent assaults on persons or property with the threat of punishment; without sanctions, we would descend into something resembling a condition of war-of-all-against-all. We adopt coercive systems of regulation precisely to avoid having to live under such conditions.The book is divided into three parts: (1) a prima facie logical-empirical case for the Coercion Thesis, (2) a study of the "society of angels" and international law counterexamples, and why they do not refute the thesis, and (3) an analysis of how law guides behaviour and the implications of the Coercion Thesis on reasons for action.Going against the current conventional wisdom in legal philosophy, Himma makes a systematic defence of the Coercion Thesis arguing that coercion or enforcement mechanisms are not only a necessary feature of legal systems, but a conceptually necessary feature of legal systems.

Law and Morality at War develops a normative framework within which the law of armed conflict should be evaluated, interpreted, and reformed. The book defends existing protections for civilians, proposes new protections for combatants, and interprets vague and ambiguous rules - including discrimination, precautions, and proportionality - in their morally best light. The book makes original contributions to a variety of current debates in moral and legal philosophy, including the justification of legal authority, moral liability to defensive harm, and moral choice under uncertainty. At the same time, the book directly confronts the complex problems of the modern battlefield, including the use of human shields. Both theoretical and practical, the book aims to better guide combatants and better protect civilians.With a new preface addressing recent developments and continued armed conflict.

The idea of status has long puzzled philosophers. Some people have higher social status than others, and some have distinct legal statuses, such as being an employee, a tenant, or a refugee. But why should that be the case? Why should some enjoy more esteem than others? And why should law pick out a class of persons, give it a label, and treat it differently?Status in Law and Morality provides a philosophical account of status, arguing that it is a moral, and not just a legal or social, idea. The point of status is to protect the weaker party in social relations - the employee, or the tenant - through social recognition of their role as well as through legal regulation. Tracing the origins of the idea of status in law and in moral philosophy, this book challenges the commonly held view that status is an inherently inegalitarian idea that should have no place in modern law. It instead distinguishes between 'rank' and 'role' based statuses and argues that law ought to boost the self-esteem of those who hold vulnerable social roles.Thought-provoking and pioneering, this book aims to revive the progressive character of status to work towards regulating unequal social relations and protecting vulnerable groups.

Four values--justice, consent, equality, and collective decision in the form of law--have profoundly shaped the practice of law in the twentieth century and beyond. Value and Circumstance revisits these political and moral ideals, uncovering the relationship between value and the moment.Each of the four key subjects is explored by returning to first principles in a way that invites reflection on the nature and functions of morality itself. The author claims that there is a deep and ongoing connection (and sometimes a dialogue) between the ideal and the everyday. As such, each of those things can be fully understood, appreciated, and pursued only in partnership with the other, even in cases when that partnership is unspoken and unacknowledged.Moreover, the book argues that sound moral comprehension is immanent in experience and engagement. We learn fully what justice calls for by doing justice; learn consent properly through practising consent; learn just when, in what manner, and in what domains to pursue equality through engaging with the prevailing equalities (both secured and unsecured) of our particular times and places; and learn what law should look like only by deciding what law is to be. In this dynamic, the moral world is steadily enlarged by our ordinary engagement with it. We construct and draw upon the realm of value, to which we are accountable for our flourishing. We cannot live well with reference to the ideal alone.

Every modern democratic state imprisons thousands of offenders every year, depriving them of their liberty, causing them a great deal of psychological and sometimes physical harm. Relationships are destroyed, jobs are lost, the risk of the offender being harmed by other offenders is increased and all at great expense to the state.How can this brutal and costly enterprise be justified? Traditionally, philosophers answering this question have argued either that the punishment of wrongdoers is a good in itself (retributivism), or that it is a regrettable means to a valuable end, such as the deterrence of future wrongdoing, and thus justifiable on consequentialist grounds. This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'. On this view, the permission to punish offenders is grounded in the duties that they incur in virtue of their wrongdoing. The most important duties that ground the justification of punishment are the duty to recognize that the offender has done wrong and the duty to protect others against wrongdoing. In the light of these duties the state has a permission to punish offenders to ensure that they recognize that what they have done is wrong, but also to protect others from crime.In contrast to other justifications of punishment grounded in deterrence, the duty view is developed in the light of a non-consequentialist moral theory: a theory which endorses constraints on the pursuit of the good. It is shown that it is normally wrong to harm a person as a means to pursue a greater good. However, there are exceptions to this principle in cases where the person harmed has an enforceable duty to pursue the good. The implications of this idea are explored both in the context of self-defence, and then in the context of punishment. Through the systematic exploration of the relationship between self-defence and punishment, the book makes significant progress in defending a plausible set of non-consequentialist moral principles that justify the punishment of wrongdoers, and marks a significant contribution to the philosophical literature on punishment.

The book shows that civil disobedience is generally more defensible than private conscientious objection. Part I explores the morality of conviction and conscience. Each of these concepts informs a distinct argument for civil disobedience. The conviction argument begins with the communicative principle of conscientiousness (CPC). According to the CPC, having a conscientious moral conviction means not just acting consistently with our beliefs and judging ourselves and others by a common moral standard. It also means not seeking to evade the consequences of our beliefs and being willing to communicate them to others. The conviction argument shows that, as a constrained, communicative practice, civil disobedience has a better claim than private objection does to the protections that liberal societies give to conscientious dissent. This view reverses the standard liberal picture which sees private 'conscientious' objection as a modest act of personal belief and civil disobedience as a strategic, undemocratic act whose costs are only sometimes worth bearing. The conscience argument is narrower and shows that genuinely morally responsive civil disobedience honours the best of our moral responsibilities and is protected by a duty-based moral right of conscience. Part II translates the conviction argument and conscience argument into two legal defences. The first is a demands-of-conviction defence. The second is a necessity defence. Both of these defences apply more readily to civil disobedience than to private disobedience. Part II also examines lawful punishment, showing that, even when punishment is justifiable, civil disobedients have a moral right not to be punished. Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence.

We subject others and are ourselves subjected to risk all the time - risk permeates life. Despite the ubiquity of risk and its imposition, philosophers and legal scholars have devoted little of their attention to the difficult questions stimulated by the pervasiveness of risk. When we impose risk upon others, what is it that we are doing? What is risking's moral significance? What moral standards govern the imposition of risk? And how should the law respond to it? This book highlights these important but neglected questions and offers novel answers to them in a systematic way, constructing a normative framework of risk imposition that draws upon a wide range of insights from diverse sources within philosophy and legal theory.Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence.

Contemporary political and legal theory typically justifies the value of political and legal institutions on the grounds that such institutions bring about desirable outcomes - such as justice, security, and prosperity. In the popular imagination, however, many people seem to value public institutions for their own sake. The idea that political and legal institutions might be intrinsically valuable has received little philosophical attention. Why Law Matters presents the argument that legal institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value. Harel advances the argument in several ways. Firstly, he examines the value of rights. Traditionally it is believed that rights are valuable because they promote the realisation of values such as autonomy. Instead Harel argues that the values underlying (some) rights are partially constructed by entrenching rights. Secondly he argues that the value of public institutions are not grounded (ONLY) in the contingent fact that such institutions are particularly accountable to the public. Instead, some goods are intrinsically public; their value hinges on their public provision. Thirdly he shows that constitutional directives are not mere contingent instruments to promote justice. In the absence of constitutional entrenchment of rights, citizens live "at the mercy of" their legislatures (even if legislatures protect justice adequately). Lastly, Harel defends judicial review on the grounds that it is an embodiment of the right to a hearing. The book shows that instrumental justifications fail to identify what is really valuable about public institutions and fail to account for their enduring appeal. More specifically legal theorists fail to be attentive to the sentiments of politicians, citizens and activists and to theorise public concerns in a way that is responsive to these sentiments.

Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent group intention.This book argues that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. The book argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation.Developing a robust account of the nature and importance of legislative intention, the book represents a significant contribution to the literature on deliberative democracy that will be of interest to all those thinking about legal interpretation and constitutional theory.Oxford Legal Philosophy publishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence.

In law, gains, like losses, don't always lie where they fall. The circumstances in which the law requires defendants to give up their gains are well documented in the work of unjust enrichment lawyers. The same cannot be said, however, of the reasons for ordering restitution of such gains.It is often suggested that unjust enrichment's existence can be demonstrated without inquiry into these reasons, into the principles of justice it represents and invokes. Yet while we can indeed show that there exists a body of claims dealing with the recovery of mistaken payments and the like without going on to inquire into their rationale, this isn't true of unjust enrichment's existence as a distinct ground of such claims. If unjust enrichment exists as a body of like cases and claims, truly independent of contract and tort, it does so by virtue of the distinct reasons it identifies and to which these claims respond.Reason and Restitution examines the reasons which support and shape claims in unjust enrichment and how these reasons bear on the law's resolution of these claims. The identity of these reasons matters. For one thing, unjust enrichment's status as a distinct ground of liability depends on the distinctiveness of these reasons. But, more importantly, it matters to those charged with the practical tasks of deciding cases and making laws, for it is these reasons alone which can direct how judges and legislators ought to respond to these claims.

Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers.Ernest Weinrib made a seminal contribution to the understanding of private law with his first book, The Idea of Private Law. In it, he argued that there is a special morality intrinsic to private law: the morality of corrective justice. By understanding the nature of corrective justice we understand the purpose of private law - which is simply to be private law.In this new book Weinrib takes up and develops his account of corrective justice, its nature, and its role in understanding the law. He begins by setting out the conceptual components of corrective justice, drawing a model of a moral relationship between two equals and the rights and duties that exist between them. He then explains the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract, and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor.Combining legal and philosophical analysis, Corrective Justice integrates a concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Alongside the revised edition of The Idea of Private Law, it will be essential reading for all academics, lawyers, and students engaged in understanding the foundations of private law.

Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers. Ernest Weinrib made a seminal contribution to the understanding of private law with his first book, The Idea of Private Law. In it, he argued that there is a special morality intrinsic to private law: the morality of corrective justice. By understanding the nature of corrective justice we understand the purpose of private law - which is simply to be private law. In this book Weinrib takes up and develops his account of corrective justice, its nature, and its role in understanding the law. He begins by setting out the conceptual components of corrective justice, drawing a model of a moral relationship between two equals and the rights and duties that exist between them. He then explains the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract, and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. Combining legal and philosophical analysis, Corrective Justice integrates a concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Alongside the revised edition of The Idea of Private Law, it is essential reading for all academics, lawyers, and students engaged in understanding the foundations of private law.

You find yourself in a court of law, accused of having hit someone. What can you do to avoid conviction? You could simply deny the accusation: 'No, I didn't do it'. But suppose you did do it. You may then give a different answer. 'Yes, I hit him', you grant, 'but it was self-defence'; or 'Yes, but I was acting under duress'. To answer in this way-to offer a 'Yes, but. . .' reply-is to hold that your particular wrong was committed in exceptional circumstances. Perhaps it is true that, as a rule, wrongdoers ought to be convicted. But in your case the court should set the rule aside. You should be acquitted. Within limits, the law allows for exceptions. Or so we tend to think. In fact, the line between rules and exceptions is harder to draw than it seems. How are we to determine what counts as an exception and what as part of the relevant rule? The distinction has important practical implications. But legal theorists have found the notion of an exception surprisingly difficult to explain. This is the longstanding jurisprudential problem that this book seeks to solve. The book is divided into three parts. Part I, Defeasibility in Question, introduces the topic and articulates the core puzzle of defeasibility in law. Part II, Defeasibility in Theory, develops a comprehensive proof-based account of legal exceptions. Part III, Defeasibility in Action, looks more closely into the workings of exceptions in accusatory contexts, including the criminal trial.