This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the contract value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. This makes expectation damages intelligible as a vindication of the plaintiff's contractual right. Moreover, the disjunctive obligation can be reconciled with all the doctrines that others take to be decisive arguments against it—with the doctrines of specific performance, inducing breach, impossibility, preexisting duty consideration, and nominal damages.

This paper explores a novel type of argument in legal theory—a psychological debunking argument—by the example of the justification of human rights and based on a psychological dual-process model of decision-making. Debunking arguments undermine confidence in a belief because of shortcomings of the empirical conditions under which it was formed. They thereby open a route from the descriptive to the evaluative, from Is to Ought, without illicitly crossing metaethical waters since they involve normative premises. As they are epistemic, they cannot replace substantive arguments on the merits. However, they may be useful when substantive arguments are stalled or the necessity to make a judgment precludes further discussions.

The controversial justification of human rights is a good test case for debunking arguments. The challenge is to find features in the formation of beliefs about human rights that undermine their epistemic justification. Some psychologists claim that relevant beliefs arise from the rationalization of intuitions. This process is ill-suited to generate correct beliefs; so formed beliefs may be debunked. This also shows how legal reasoning might be improved.

Despite the notion's prominence, scholarship has yet to offer a viable account of the view that crimes constitute public wrongs. Despite numerous attempts, some scholars are now doubting whether a viable account is forthcoming whereas others are reeling back expectations for what the concept itself can offer. This article vindicates crime's public character while asserting the relevance of political theory in doing so. After critiquing prior attempts and clarifying expectations, the article offers a novel account, relying on both key doctrinal features and a deliberative democratic framework through which to interpret their public significance. In doing so, it demonstrates how this framework explains the public nature of censure, and ultimately argues that crimes are public wrongs not because such actions themselves necessarily wrong or harm the public, but instead because they are the type of wrong that the public has a stake in addressing. This gives rise to an understanding of sentencing as public decision-making within which citizens and their representatives decide how best to use public power to manage public interests.

Legal reasoning is commonly thought of as being based on either rules or analogies. More specifically, there is ongoing debate regarding whether precedential reasoning is best characterized as rule-based or analogical. This article continues that work by comparing recent and representative approaches from each camp, namely, Stevens's analogical model and the “rule-based” model of Horty and Rigoni. In the course of the comparison improvements on each approach are suggested and the improved models serve as the basis for the ultimate evaluation. The evaluation demonstrates that the “best” approach depends on the goals one has in theorizing legal reasoning as well as the jurisprudential assumptions one is willing to make.

At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

On a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather than conclude that the rule of law is inimical to the administrative state, however, I defend an alternative conception of the rule of law. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials in the exercise of their legal powers. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.

This paper offers a novel substantive justification for mandatory electoral quotas—e.g., gender or racial quotas—and a new methodological approach to their justification. Substantively, I argue for a political egalitarian account of electoral quotas. Methodologically, based on this account and a political egalitarian grounding of political participatory rights, I offer an alternative to the External Restriction Approach to the justification of electoral quotas. The External Restriction Approach sees electoral quotas as at best justified restrictions on political participatory rights. I argue for the Internal Restriction Approach instead, which can justify electoral quotas by specifying the pro tanto scope of political participatory rights rather than by justifying restrictions on the pro tanto scope of these rights. On this approach, adequately set electoral quotas do not even conflict with and are not balanced against political participatory rights, while electoral quotas—when justified—are pro tanto required rather than merely permitted.

John Rawls wrote that people can voluntarily acquire political obligations to institutions only on the condition that those institutions are at least reasonably just. When an institution is seriously unjust, by contrast, attempts to create political obligation are “void ab initio.” However, Rawls's own explanation for this thought was deeply problematic, as are the standard alternatives. In this paper, I offer an argument for why Rawls's intuition was right and trace its implications for theories of authority and political obligation. These, I claim, are more radical than is often thought.

Much legal and philosophical work has been devoted to discussing the importance of protecting freedom of expression from legislative curtailment by the state. That state-centric focus has meant that the ways that wider social phenomena can stifle freedom of expression have, with a notable exception, escaped sustained philosophical attention. The paper reflects on the nature of socially coercive restrictions on free expression and offers an account of how it is appropriate to respond to such forms of social coercion. First, it considers a range of social costs pertaining to expression and argues that such costs can constitute meaningful restrictions on the freedom to express. Second, it reflects on the normative implications concerning that threat to free expression and defends two related moral duties citizens have to refrain from being complicit in unjustified social coercion—a duty of expressive toleration and a duty of respect for expressive agency.

Intentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This paper argues that objectivism faces serious problems as it cannot deal with disagreement: reasonable and rational persons can often disagree as to what the interpretation of a text should be. It also defends subjectivism against criticisms by objectivists.

Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.

In two recent papers, Mark McBride has attacked the interest theory of rights, both introducing new arguments and claiming that interest theorists have not successfully deflected Gopal Sreenivasan's earlier arguments. This essay replies to all of McBride's criticisms, showing them to be mistaken.

Anarchy is often contrasted with law, order, or security. But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems that regulate the behavior of their members and protect their rights. International law, market anarchism, and other models of anarchism such as the one proposed by Chandran Kukathas already exhibit or could plausibly exhibit complex legal rules and institutions. I will show that insofar as these models rely on consent, they all share similar structural flaws, namely, that they cannot meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs that embody and respect individual moral equality, even minimally conceived. The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state-based or not, must have a strong nonconsensual, coercive element: the process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice.