A wrongful life suit is an unusual civil suit brought by a child (typically a congenitally disabled child)1 who seeks damages for burdens he suffers that result from his creation. Typically, the child charges that he has been born into an unwanted or miserable life.2 These suits offer the prospect of financial relief for some disabled or neglected children and have some theoretical advantages over alternative causes of action.3 But they have had only mixed, mostly negative, success.4 They have, however, spurred considerable philosophical interest.5 This attention, though, has been primarily focused on issues about the coherence of complaining about one’s existence or its essential conditions. These suits also raise important, but less well-probed, philosophical questions about the morality of procreation and, more generally, about the moral significance of imposed, but not consented to, conditions that deliver both significant harms and benefits.

What one ought to mean by “speech,” in the context of discussions of free speech, is whatever it is that a correct justification of the right to free speech justifies one in protecting. What one ought to mean, it may be argued, includes illocution, in the sense of J.L. Austin. Some feminist writers, accepting that free speech includes free illocution, have been led to take the notion of silencing seriously in discussions of free speech.

We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to others' exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of others.

There are those who believe that the rules governing the international political system are changing fundamentally; a new universal constitutional order is in the making, with profound implications for the constituent units, competencies, structure, and standing of the international legal order (cf. Cassese 1986, 1991; Weller 1997). On the other side, there are those who are profoundly skeptical of any such transformation; they hold that states remain the leading source of all international rules—the limiting factor that ensures that international relations are shaped, and remain anchored to, the politics of the sovereign state (cf. Smith 1987; Holsti 1988; Buzan, Little, and Jones 1993). “In all times,” as Hobbes put it, political powers are “in continual jealousies, and in the state and postures of Gladiators” (1968, 187–8). Despite new legal initiatives, such as the human rights regime, “power politics” remain the bedrock of international relations; plus ça change, plus c’est la mêmechose.

Nearly all philosophers of law agree that nonnormative, nonevaluative, contingent facts—descriptive facts, for short—are among the determinants of the content of the law. In particular, ordinary empirical facts about the behavior and mental states of people such as legislators, judges, other government officials, and voters play a part in determining that content. It is highly controversial, however, whether the relevant descriptive facts, which we can call law-determining practices, or law practices (or simply practices) for short, are the only determinants of legal content, or whether legal content also depends on normative or evaluative facts—value facts, for short. In fact, a central—perhaps the central—debate in the philosophy of law is a debate over whether value facts are among the determinants of the content of the law (though the debate is not usually characterized in this way).

This article explores a long-running debate in evidence theory about the significance of certain puzzling cases where there is reluctance to ascribe liability despite a high probability of liability. It focuses on certain analyses of these puzzles, distinguishing between inferential, moral, and knowledge-based analyses. The article emphasizes the richness and complexity of the puzzle cases and suggests why they are difficult to resolve.

Standard, familiar models portray harms and benefits as symmetrical. Usually, harm is portrayed as involving a worsening of one's situation, and benefits as involving an improvement. Yet morally, the aversion, prevention, and relief of harms seem, at least presumptively, to matter more than the provision, protection, and maintenance of comparable and often greater benefits. Standard models of harms and benefits have difficulty acknowledging this priority, much less explaining it. They also fail to identify harm accurately and reliably. In this paper, I develop these problems, argue that we should reconsider our commitment to the standard models, and then merely gesture at the direction in which we might locate a superior approach, one that better accounts for the moral significance of harm and its relation to autonomy rights.

Economic theory is built on assumptions about human behavior—assumptions embodied in rational-choice theory. Underlying these assumptions are implicit notions about how we think and learn. These implicit notions are fundamentally important to social explanation. The very plausibility of the explanations that we develop out of rational-choice theory rests crucially on the accuracy of these notions about cognition and rationality. But there is a basic problem: There is often very little relationship between the assumptions that rational-choice theorists make and the way that humans actually act and learn in everyday life. This has significant implications for economic theory and practice. It leads to bad theories and inadequate explanations; it produces bad predictions and, thus, supports ineffective social policies.

The doctrine of precedent, as it has evolved within the common law, has at its heart a form of reasoning—broadly speaking, a logic—according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases, while still allowing these later courts a degree of freedom in responding to fresh circumstances. Although the techniques for arguing on the basis of precedent are taught early on in law schools, mastered with relative ease, and applied on a daily basis by legal practitioners, it has proved to be considerably more difficult to arrive at a theoretical understanding of the doctrine itself—a clear articulation of the underlying logic.

Joel Feinberg was a brilliant philosopher whose work in social and moral philosophy is a legacy of excellent, even stunning achievement. Perhaps his most memorable achievement is his four-volume treatise on The Moral Limits of the Criminal Law, and perhaps the most striking jewel in this crowning achievement is his passionate and deeply insightful treatment of paternalism. Feinberg opposes legal paternalism, the doctrine that “it is always a good reason in support of a [criminal law] prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself.” Against this doctrine Feinberg asserts that when an agent's sufficiently voluntary choice causes harm to herself or risk of harm to herself, this category of harm-to-self is never a good reason in support of criminal law prohibition of that type of conduct.

I. MORALITY OR CONVENTION?

American lawyers are audacious by nature and have been known, on more than one occasion, to make outrageous arguments on behalf of their clients. Yet there is one claim that even the most shameless of lawyers would not put forward in an American court: No one would ever challenge the idea that the United States Constitution is law in the United States.1. Imagine a lawyer saying to a judge: “Yes, your honor, I concede that my client purposefully engaged in multiple acts of counterfeiting. But, unfortunately for the prosecution, Article I of the Constitution is not good law, and hence Congress lacks the authority to criminalize counterfeiting. The court has no choice but to set my client free.” For if there is one proposition of law that enjoys universal acceptance by the bench and is held with unshakable conviction, it is that the United States Constitution determines the authority structure of the federal government and is legally binding on all officials.

The doctrine of precedent is one of the most distinctive features of the modern common law. Understanding the operation of precedent is important for our theorizing about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent endorsed by practitioners and many legal philosophers alike. I will argue that for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as correctly decided. The relevance of earlier cases is not well understood in terms of rules—they are better understood as a special type of reason.

In Law's Empire Prof. Ronald Dworkin has advanced a new theory of law, complex and intriguing. He calls it law as integrity. But in some ways the more radical and surprising claim he makes is that not only were previous legal philosophers mistaken about the nature of law, they were also mistaken about the nature of the philosophy of law or jurisprudence. Perhaps it is possible to summarize his main contentions on the nature of jurisprudence in three theses: First, jurisprudence is interpretive: “General theories of law… aim to interpret the main point and structure of legal practice” (LE, 90). Second, legal philosophy cannot be a semantic account of the word “law.” Legal philosophers “cannot produce useful semantic theories of law” (id.). Third, legal philosophy or jurisprudence “is the general part of adjudication, silent prologue to any decision at law” (id.).

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

In a 1973 article, H.L.A. Hart says the following about Jeremy Bentham's achievements in the philosophy of law: Bentham was certainly not the first to define law as a command: Hobbes, for example, had anticipated him in that, and even the despised Blackstone's definition of municipal law was in terms of command. But Bentham differed from Hobbes and, as far as I know, from all previous social theorists in insisting that we must not so define our terms in legal or political theory as to make the practical conclusions which we favour follow from them. Such definitions have been aptly called ‘persuasive definitions’ and among Bentham's many claims to be an innovator none is better founded nor, I think, more important than his insistence on a precise and so far as possible a morally neutral vocabulary for use in the discussion of law and politics. This insistence, though it may seem a merely linguistic matter, was the very centre, and I would say the sane and healthy centre, of the legal positivism of which Bentham may be regarded as the founder. It accounts for many important themes in his general theory including the form of his own definition of law. The terms that Bentham uses to define law are all flatly descriptive and normatively neutral. (1973, 28)

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that (1) the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases (e.g., cases that reach the stage of appellate review); and (2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.

Joseph Raz has developed a highly detailed analysis of the nature of authority that accounts for its structure, the role it plays in practical reasoning, and the conditions under which it is legitimate. Raz's analysis, which has been evolving over the last few decades, is impressive in both scope and insight. With it, Raz dissolves many of the paradoxes and conundrums that have traditionally puzzled students of authority.

Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is usually taken to be prima-facie, comprehensively applicable, universally borne, and content-independent.” This essay is a commentary on the current state of discussion of this perennial philosophical topic.

H.L.A. Hart's The Concept of Law is the most important and influential book in the legal positivist tradition. Though its importance is undisputed, there is a good deal less consensus regarding its core commitments, both methodological and substantive. With the exception of an occasional essay, Hart neither further developed nor revised his position beyond the argument of the book. The burden of shaping the prevailing understanding of his views, therefore, has fallen to others: notably, Joseph Raz among positivists, and Ronald Dworkin among positivism's critics. Dworkin, in particular, has framed, then reframed, the conventional understanding, not only of Hart's positivism, but of the terms of the debate between positivists and him. While standing on the sidelines, Hart witnessed the unfolding of not only a lively debate between positivists and Dworkin, but an equally intense one among positivists as to positivism's (and his) core claims. The most important debate has been between so-called inclusive and exclusive positivists: a debate as much about Hart's legacy as about the proper interpretation of legal positivism.