Category Archives: Deontology and Moral Responsibility
John Gardner, ‘Damages Without Duty’
ABSTRACT Stephen Smith argues against what he calls ‘the duty view’ of damages awards in private law. The duty view is the view according to which ‘damage[s] awards confirm existing legal duties to pay damages.’ I am credited with advancing ‘the most plausible’ version of the duty view – namely, the ‘inchoate duty view’ according […]
‘Legal Theory Lexicon: Deontology’
“A prior Legal Theory Lexicon post explored utilitarianism, an approach to normative moral theory that has had an enormous influence on legal thought. This week, I take up one of utilitarianism’s main rivals, deonotology. Deontological moral theories vary in myriad ways, but the focal point for deontology is the concept of duty with its correlative […]
E Lees, ‘Property In The Anthropocene’
ABSTRACT Intergenerational justice, community interests, and environmental protection are all goals sought through the imposition of the duties of stewardship onto owners of land. But such duties, when imposed by law, require justification beyond the morality of maintaining and preserving land in a good condition for its present and future use. The potential for sanction […]
‘Legal Theory Lexicon: Utilitarianism’
“This installment of the Legal Theory Lexicon is a very brief introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is […]
Paul Miller, ‘Conscience and Justice in Equity’
ABSTRACT This short essay introduces and engages several philosophical questions raised by Irit Samet’s Equity: Conscience Goes to Market. Amongst other things, it addresses questions going to: the proper scope of equity; the relationship between equity’s remedial and supplemental functions; whether, and if so, to what extent equity promotes compliance with moral obligations; what, if […]
Allen Mendenhall, ‘The Use of Knowledge and Moral Imagination in the Common Law’
ABSTRACT This article discusses the common law in terms of Hayekian epistemology. The common law is not just a historical and governmental system for resolving disputes through courts and case precedents, traceable to eleventh-century England and adopted by the United States and nearly half of the countries on earth. It is also a mode of […]
Duane Rudolph, ‘Of Moral Outrage in Judicial Opinions’
ABSTRACT Moral outrage is a substantive and remedial feature of our laws, and the Article addresses three questions overlooked in the scholarly literature. What do judges mean when they currently express moral outrage in the remedies portion of their opinions? Should judges express such moral outrage at all? If so, when? Relying on a branch […]
David Enoch, ‘Playing the Hand You’re Dealt: How Moral Luck Is Different from Morally Significant Plain Luck (And Probably Doesn’t Exist)’
ABSTRACT What you ought to do is sensitive to circumstances that are not under your control, or to luck. So plain luck is often morally significant. Still, some of us think that there’s no moral luck – that praiseworthiness and blameworthiness are not sensitive to luck. What explains this asymmetry between the luck-sensitivity of ought-judgments […]
Carl Fox, ‘What’s Special About the Insult of Paternalism?’
ABSTRACT A common assumption is that paternalism generates a special, and especially grievous, insult. Identifying this distinctive insult is then presented as the key to unlocking the concept and determining its moral significance. I submit that there is no special insult. It is, rather, a particular form that a lack of recognition respect can take. […]
Jesse Wall, ‘No-Fault Compensation and Unlocking Tort Law’s: “Reciprocal Normative Embrace”’
ABSTRACT The purpose of this article is to explain how the principle of corrective justice has been displaced by the provision of no-fault compensation for personal injuries. In explaining the transition from tort liability for personal injuries to no-fault compensation, the aim is to identify the norms that are adhered to, and the norms that […]