Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of deterring other criminals.Jeffrie Murphy writes, “Even many people who do not like the name ‘retributivist’ are persuaded by considerations that are clearly retributive in nature. Suppose it was suggested that we punish negligent vehicular homicide with life imprisonment and first degree murder with a couple of years in jail, and suppose this suggestion was justified with the following utilitarian reason: Conduct of the first sort is much more common and dangerous than conduct of the latter sort (we are much more likely to be killed by a negligent driver than by someone who kills us with the primary object of killing us), and thus we should use the most severe deterrents against those who are genuinely dangerous. If we object to this suggestion, as most of us would want to, that this would be unjust or unfair because it would not be apportioning punishment to fault or desert, we should be making a retributive argument. Thus even if the label ‘retributivist’ repels most people, many of the actual doctrines of the theory do not.” Jeffrie Murphy, Retribution, Justice, And Therapy 230 (1979). Because the most commonly discussed version of retributivism is developed from Kant’s moral and legal theory, I will refer to it as Kantian Retributivism.This interpretation of Kant’s theory of punishment has been developed by Herbert Morris, Persons and Punishment, 52 Monist 475 (1968), and Murphy, supra note 1. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair.Murphy comes to the conclusion that the punishment of such individuals is unfair and, therefore, unwarranted. See Jeffrie Murphy, Marxism and Retribution, in Murphy, supra note 1, at 93–114. I have argued elsewhere that neither strategy is tenable.See Jami L. Anderson, Reciprocity as a Justification for Retributivism, 16 Crim. Just. Ethics 13–25(1997).

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.

Like many of you, I have a neighbor with an excitable car alarm. It goes off if someone drives by at just the right speed, if the humidity is right, or if a large insect lands on the hood. Worse, it seems most sensitive at night. (Perhaps that’s just when he parks in front of my house.) I’d like to do something about it, to preempt it before it preempts another night of sleep. One possibility, which is beyond my competence, is repairing it myself. Another, which I have so far resisted, is to get out my tool box and remove the offending device. Private law has a kinder and gentler solution: I can get an injunction. Rather than trying to sue my neighbor for minuscule damages each time he wakes me, and waste a huge amount of both of our time in the process, I can enlist the state’s support, and have it act preemptively to prevent him from waking me.

How much must we sacrifice in order to stop strangers from suffering serious losses, and does distance from them alter our obligations? When may we harm some people to help others? How can we best reason about these issues? These are three general questions—the first two are substantive ones, the third a methodological one—that Peter Unger discusses in his book Living High and Letting Die (hereinafter LHLD) and that I discuss in this article.1

Numerous legal theorists argue that corrective justice is distinct both conceptually and normatively from distributive justice. In particular, they contend that it is an error to view corrective justice as ancillary to distributive justice, necessary only to maintain or restore a preferred allocation of benefits and burdens. The specific arguments of these legal theorists are addressed and shown to be inconclusive in relation to what I term the Dependence Thesis. The Dependence Thesis holds that a normative account of the occasions of corrective justice is dependent on a larger theory of distributive justice. The nature of this dependence relation varies from theory to theory. The role of tort compensation schemes within libertarian, liberal egalitarian, and utilitarian theories of distributive justice is discussed. It is argued that such theories provide comprehensive and critical perspectives on historical corrective practices, neither simply endorsing nor invalidating them. An alternative normative account of the occasions of corrective justice, offered by legal theorists who support the autonomy of corrective justice from distributive justice, is also discussed.

Every theory of justice requires a first-order theory specifying principles of justice, and a second-order view explaining why those principles constitute the correct principles of justice. According to John Rawls, political liberalism is committed to the two principles of justice specified in its first-order theory, “justice as fairness.” Justice as fairness, according to Rawls, in turn presupposes the second-order view that justice is a political conception. A political conception of justice treats the principles derived from the fundamental ideas in the public political culture as the correct principles of justice. Political liberalism, however, nowhere offers a defense of the view that justice is a political conception. Indeed, it even strives to avoid the admission that it presupposes that justice is a political conception by stating only that it uses a political conception of justice, while allowing that justice might not actually be a political conception. As to the truth of its second-order presupposition, political liberalism chooses to remain agnostic. Rawls claims that political liberalism has no choice at all. To do otherwise, he argues, would lead to an internal contradiction.

What is law, and how do we know what law is? When a philosopher of law asks these questions, it pays to be cautious. When asked philosophically, the question what is law? is clearly not a question about the content of particular laws, although that question is not devoid of philosophical interest: As Nigel Simmonds has said, when disagreements about the law’s content occur, these are generally not disagreements about what the rules are, nor do they revolve around theses of ambiguity in the semantic structure of specific rules. Rather, they seem to depend upon varying conceptions of the framework of principles upon which the law is based.See Nigel Simmonds, The Decline Of Juridical Reason 17–19 (1984).

Why do we fear preventive detention and believe that it requires special justification? Citizens in free, democratic societies are accustomed to substantial limitations on liberty that are justified morally and politically by the “common good.” Avoiding serious danger is a greater good than most, but the power of the state to confine dangerous people or to reduce danger by equally oppressive intrusions is considered especially fearsome. The usual, and generally uncontroversial, justifications given for such deprivations of liberty are that the person has culpably committed a criminal offense or that the agent is not responsible for the danger he or she presents. Criminal imprisonment and various forms of civil commitment, for example, which preempt potentially dangerous conduct by incapacitation, are considered reasonable deprivations of liberty in such cases. But in neither case is the state confining on purely preventive grounds a responsible agent who has done no wrong. In contrast, pure preventive detention is an anathema, we believe, because polities devoted to liberty and autonomy have no moral or political warrant to confine or similarly oppress innocent, responsible agents. What could justify such a vast intrusion on the liberty of such agents to pursue their projects?I recognize that the state has an uncontroversial right to quarantine innocent, responsible agents if such agents have communicable diseases and no less intrusive intervention will prevent infection of others. Although many forms of communicable disease can be spread by conduct, the justification of pure quarantine requires no action or potential action. It is a purely public health measure directed toward microorganisms that has the undesirable effect of limiting freedom of action. This article addresses only the preemption of dangerous conduct, which might in some cases include the transmission of disease. See generally Michael Corrado, Punishment, Quarantine, and Preventive Detention, 15 Crim. Just. Ethics 3 (Summer/Fall 1996).

Sometimes it is morally permissible to prevent someone from performing a wrongful act by harming him before he has a chance to act. It is permissible, for example, to kill someone you reasonably fear is about to kill you. Under other circumstances, however, it may only be permissible to threaten to harm someone to discourage him from performing a wrongful act. It is not always permissible straightaway to harm him. A military commander, for example, may threaten an enemy with disproportionate retaliation, even though it would not ordinarily be permissible to carry it out.

This article seeks to parry Ronald Dworkin’s assaults on the legal-positivist thesis that the authoritative norms in any legal system are ascertained by reference to some overarching set of criteria that may or may not require the making of moral judgments. Four main lines of argument are presented. First, Dworkin does not establish that judges disagree with one another at a criterial level in easy cases; second, even if criterial disagreements are indeed present (at least subterraneously) in all cases, they will be quite sharply limited by the need for regularity at the level of outcomes in a functional legal system; third, Dworkin errs in thinking that legal conventions must be static, and he further errs in thinking that the adjudicative practices of American law can plausibly be portrayed as based solely on convictions and not on conventions. Finally, with his recent reflections on the metaphysics of morals, Dworkin helps to reveal the resilience of a doctrine (viz., soft or inclusive positivism) that he seeks to confute.

Recently, legal and social thinkers have turned to the idea that actions possess a nonlinguistic meaning, called “expressive meaning.” In this article I examine the idea of expressive meaning and its role in legal reasoning. My focus is on a series of U.S. Supreme Court cases involving constitutional challenges to election districts drawn on the basis of race. The Supreme Court used the idea of expressive meaning in striking down the districts. After explicating the idea of expressive meaning, I explain and criticize the Court’s reasoning. I distinguish the approach of Justices Thomas and Scalia, who hold that all uses of race in districting do constitutional harm, from that of Justice O’Connor, who distinguishes uses of race that do constitutional harm from those that do not. I contend that Justice O’Connor is right to make the distinction but she draws the line using a questionable standard. A more defensible standard would be more accommodating to the districts that the Court invalidated.

Positivism’s Separability Thesis denies that the legality of a norm necessarily depends on its substantive moral merits; as H.L.A. Hart puts it, “[I]t is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.”H.L.A. Hart, The Concept Of Law 185–86 (2d ed. 1994) [hereinafter CL]. Accordingly, the Separability Thesis implies it is logically possible for something that constitutes a legal system to exclude moral norms from the criteria that determine whether a standard is legally valid. In such a legal system, it is neither a necessary nor a sufficient condition for a norm N to be legally valid that N be consistent with a set of moral norms.

In “The Model of Rules I,”1 Ronald Dworkin argues that judges are often bound by principles that do not derive their authority from having been formally promulgated by a judge or legislature in accordance with a rule of recognition. But, on Dworkin’s view, the existence of such principles is inconsistent with positivism’s pedigree thesis, according to which propositions are legally valid solely in virtue of having been promulgated in accordance with a rule of recognition. Thus, Dworkin concludes that positivism is false.

The best test of whether an intellectual problem is genuinely worthwhile is whether there exists a Jewish joke on point. By that quite exacting standard, the problem of preemptive action is certainly an important one. To be sure, the joke that comes to mind is not especially funny, but that is not what counts. It is the existence of the joke, not its funniness, that matters.

Critical Legal Studies (CLS) writers argue that judicial decision making is not politically neutral; rather, it is only a stylized version of political discourse. More pointedly, these writers argue that the belief in legal neutrality legitimates an unrepresentative political process, thereby benefiting the powerful to the detriment of the weaker. Accordingly, CLS writers consider the belief in legal neutrality to be ideological. Also, CLS writers consider judicial decision making itself (as opposed to beliefs about legal decision making) to be ideological in the sense that the outcomes of legal decision making are informed and influenced by conservative ideology.I use two senses of the term “ideology” in this essay. The ideological belief in legal neutrality is ideological in a pejorative sense. That is, it is a false belief that works to the detriment of its holder. The conservative ideology that informs legal decision making is ideological in a descriptive but not necessarily a pejorative sense. For a discussion of these and other distinctions between the possible meanings of the term “ideology,” see Raymond Geuss, The Idea Of A Critical Theory (1981), esp. ch. 1. Thus, a central project of the CLS movement is to unmask the ideological nature of law.For discussion of the premises that the liberal belief about law is ideological and that the function of CLS writers is to unmask this ideological nature, see David Kairys,Introduction to The Politics Of Law: A Progressive Critique 5 (David Kairys ed., 1990); Alan Hutchinson, Introduction to Critical Legal Studies 3 (Alan Hutchinson ed., 2d ed. 1989); Richard M. Fischl, Some Realism About Critical Legal Studies, 41 U. Miami L. Rev. 505, 524–25 (1987); and Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff. L. Rev. 205 (1979).

We consider the implications of the definition of juror bias offered in Schwartz and SchwartzEdward P. Schwartz & Warren F. Schwartz, The Challenge of Peremptory Challenges. Paper presented at the annual meeting of the Public Choice Society, Long Beach, California, March 24–26, 1995. for optimal use of juror challenges to improve the accuracy of the jury process. For them, bias consists of a juror assinging more/less weight to the evidence for guilt than would be assigned by the median juror in a fully representative pool of jurors. When juror assessments of the evidence have a probabilistic component to them, we show that this notion of bias does not imply that we necessarily would wish to use challenges to eliminate the most biased jurors. We also explain how understanding juror verdict accuracy requires an analysis of the interaction between the threshold rule that the juror uses to determine what level of belief in the guilt of the defendant is sufficient for “guilt beyond a reasonable doubt” and the probative force of the evidence in the cases that the prosecution chooses to bring to trial. Whether we use the Schwartz and Schwartz definition or other more standard legal approaches to defining juror bias (and grounds for challenge for cause) we come away highly skeptical of the expanded voir dire and extended use of peremptories that, in a number of recent highly publicized criminal trials, have had the consequences of eliminating from the jury pool the most highly educated and the most knowledgeable jurors.