What’s Inside and Outside the Law?

In this article I take up a conceptual question: What is the distinction between ‘the law’ and the behavior the law regulates, or, as I formulate it, the distinction between what is ‘inside’ the law and what is ‘outside’ it? That conceptual question is in play in (at least) three different doctrinal domains: the constitutional law doctrines regarding the limits on the delegation of legislative powers; the criminal law doctrines regarding mistakes of law; and the constitutional rights doctrines that turn on the distinction between state action and the acts of non-state actors. I argue that legal doctrines should turn solely on normative considerations and should not turn on answers to conceptual questions. However, the doctrines I discuss appear to turn on the conceptual question regarding what is ‘inside’ and ‘outside’ the law. I show how each of these doctrinal areas appears to raise this conceptual issue, and I explain how the doctrines might or might not escape being held hostage to conceptual controversy.     

Justifying the use of non-experimental methods and disqualifying the use of randomized controlled trials: challenging folklore in evaluation research in crime and justice

The key limitation of non-experimental evaluation methods is that they require an assumption that all confounding factors related to treatment are identified in the statistical models developed. The key advantage of randomized experiments is that this assumption can be relaxed. In this paper, I describe and explain why this assumption is so critical for non-experiments and why it can be ignored in randomized controlled trials (RCTs). I also challenge what I describe as “folklores” that are used to justify the use of non-randomized studies despite this statistical limitation, and to justify the failure of evaluation researchers in crime and justice to use randomized experiments despite their unique ability to overcome this limitation. I conclude by reinforcing what Joan McCord had argued after a life time of review of evaluations: “(W)henever possible” evaluation studies “should employ random assignment.”     

Japan,Korea, the Philippines,China: four syndromes of corruption

Both generalizations about “Asian corruption”, and claims about greater or lesser amounts of corruption, tend to overlook the many variations existing among and within Asian societies, and among the corruption problems they experience. I suggest that deeper influences in social, political and economic development, and contrasting institutional settings, create four distinctive syndromes of corruption, each with its own set of implications for relationships between wealth and power. Japan is an example of “influence markets” in which private interests buy or rent influence over relatively specific policy outcomes within a strong state. Korea is a case of “elite cartels”, in which collusion and corrupt incentives enable several kinds of elites to cooperate in governing, enriching themselves, and resisting rising political competition. The Philippines is marked by “oligarchs and clans”, with powerful families and their entourages plundering a weak state in a climate of uncertainty and insecurity. China experiences “official mogul” corruption, in which officials abuse state power with impunity, although that process is becoming increasingly fragmented. The four syndromes may help us understand why corruption and rapid growth have coexisted in some, but not all, Asian states for long periods of time, and may also help us understand why some of those states will adapt to new global realities only with some difficulty. They also show how “consensus”-driven reforms emanating from the west may not only be ineffective, but may actually make matters worse.     

A Practical Account of Self-Defence

I argue that any successful account of permissible self- defence must be action-guiding, or practical. It must be able to inform people’s deliberation about what they are permitted to do when faced with an apparent threat to their lives. I argue that this forces us to accept that a person can be permitted to use self-defence against Apparent Threats: characters whom a person reasonably, but mistakenly, believes threaten her life. I defend a hybrid account of self-defence that prioritises an agent’s subjective perspective. I argue that it is sufficient to render the use of defence permissible if an agent reasonably believes that (a) she is morally innocent, and (b) if she does not kill this person, then they will kill her. I argue that the correct account of self-defence must distinguish between whether an agent is permitted to inflict harm, and whether the target is liable to bear that harm.     

A European Constitution in a Multinational Europe or a Multinational Constitution for Europe?

Abstract: What is the role of the nation‐state in the process of European constitutional integration? How can we transcend our divisions without marginalising those who believe in them? This article critically analyses the theoretical bases of the Treaty Establishing a Constitution for Europe and tries to explain why its ratification is so problematic. Authors such as Habermas have argued that a new European model of social cohesion is needed, and Habermas suggests that the sense of ‘community’ in a democratic Europe should be founded exclusively on the acceptance of a patriotic constitution. However, this view is criticised by authors such as Weiler and MacCormick. In this article, I explain the limits of these theoretical analyses. I will argue that a European constitutional project can be more than formally legal only if two normative conditions are satisfied: it is the result of public debate and the European Constitution includes the procedures for the recognition of European national diversity. I suggest that a theory of constitutional multinationalism, similar to the one proposed by Tully, might provide an attractive model for a European social integration. The article is divided in two parts. In the first, I explain why Habermas’ constitutional patriotism or MacCormick's states based Europe cannot provide a convincing theoretical model for a socially and constitutionally integrated Europe. In the second part, I will give an outline of Tully's idea of multinational democracy as a model for a European constitutional integration.     

Authority,Self-Determination,and Community in Cosmopolitan War

This paper examines Cécile Fabre’s cosmopolitan reductionist approach to war. It makes three main points. First, I show that Fabre must ‘thin down’ justice’s content in order to justify the cosmopolitan claim that the same rights and duties bind people everywhere. Second, I investigate Fabre’s account of the values at stake in national sovereignty and territorial integrity. Can cosmopolitanism explain why it is permissible to fight in defense of one’s political community? I doubt it. I argue that Fabre’s reductionist approach cannot justify national self-defense in many cases. Finally, I explore the role that authoritative institutions play in specifying the rights and duties we have under cosmopolitan justice. I believe Fabre takes an overly simple view of the relationship between rights, duties, and authoritative institutions. A more complex account may leave less space for private war on the part of individuals than she does.     

Non-Tracing Cases of Culpable Ignorance

Recent writers on negligence and culpable ignorance have argued that there are two kinds of culpable ignorance: tracing cases, in which the agent’s ignorance traces back to some culpable act or omission of hers in the past that led to the current act, which therefore arguably inherits the culpability of that earlier failure; and non-tracing cases, in which there is no such earlier failure, so the agent’s current state of ignorance must be culpable in its own right. An unusual but intriguing justification for blaming agents in non-tracing cases is provided by Attributionism, which holds that we are as blameworthy for our non-voluntary emotional reactions, spontaneous attitudes, and the ensuing patterns of awareness as we are for our voluntary actions. The Attributionist explanation for why some non-tracing cases involve culpability is an appealing one, even though it has limited scope. After providing a deeper account of why we should take the Attributionist position seriously, I use recent psychological research to argue for a new account of the conditions under which agents are culpable for straightforward instances of blameworthy acts. That account is extended to blameworthiness for non-voluntary responses. I conclude that even when the agent’s failure to notice arises from a nonvoluntary objectionable attitude, very few such cases are ones in which Attributionism implies that the agent is blameworthy for her act.     

In Defense of Kant’s League of States

This article presents a defense of Kant’s idea of a league of states. Kant’s proposal that rightful or just international relations can be achieved within the framework of such a league is often criticized for being at odds with his overall theory. In view of the analogy he draws between an interpersonal and an international state of nature, it is often argued that he should have opted for the idea of a state of states. Agreeing with this standard criticism that a league of states cannot establish the institutional framework for international justice, others also suggest an alternative stage model interpretation. According to this interpretation, Kant’s true ideal is in fact a state of states, whereas the league is merely introduced as a temporary and second best solution. In contrast to both the standard criticism and the stage model interpretation, I argue that fundamental normative concerns count in favour of a league rather than a state of states. I also argue that Kant’s defense of such a league is consistent with his position on the institutional preconditions for just interaction in the domestic case because of crucial relevant differences between the state of nature among individuals and the external relations between states.     

A Human Right not to be Punished? Punishment as Derogation of Rights

In this essay, I apply international human rights theory to the domestic discussion of criminalization. The essay takes as its starting point the “right not to be punished” that Douglas Husak posited in his recent book Overcriminalization. By reviewing international human rights norms, I take up Husak’s challenge to imbue this right with further normative content. This process reveals additional relationships between the criminal law and human rights theory, and I discuss one analogy: the derogation by states of an individual’s human rights under specified conditions has certain similarities to the punishment by states of an individual who holds a right not to be punished. Along the way, I highlight the normative implications of defining a human right not to be punished under both generalist and specificationist perspectives on moral rights. Noting the similarities as well as the differences in the concepts of punishment and derogation, this essay aims to contribute to the exchange between theories of human rights and the criminal law.     

Kant and Habermas on International Law

The purpose of this article is to present a critical assessment of Jürgen Habermas' reformulation of Kant's philosophical project Toward Perpetual Peace. Special attention is paid to how well Habermas' proposed multi‐level institutional model fares in comparison with Kant's proposal—a league of states. I argue that Habermas' critique of the league fails in important respects, and that his proposal faces at least two problems. The first is that it implies a problematic asymmetry between powerful and less powerful states. The second is that it entails creating a global police force that has an obligation to intervene against egregious human rights violations worldwide, and that this seems incompatible with the idea that every person has an innate right to freedom. There are important normative constraints relevant for institutional design in the international domain that Habermas does not take sufficiently into account. However, this does not mean that Kant's league cannot be supplemented with more comprehensive forms of institutional cooperation between states. On the basis of my assessment of the multi‐level model, I propose a hybrid model combining elements from Kant and Habermas.     

Hart's and Kelsen's Concepts of Normativity Contrasted*

Abstract. Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading.     

Kant, Copyright and Communicative Freedom

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture.     

Agamben and Marx: Sovereignty, Governmentality, Economy

This essay reconsiders Marx’ prehistory of capital through the lens of the work of Giorgio Agamben, who in the wake of Foucault has proposed a bio-political theory of sovereignty that breaks down the analytical separation between sovereignty and governmentality that Foucault in his work tries to maintain. Although Agamben mentions Marx only once in his study of sovereign power, I argue that his study nevertheless contributes to our understanding of the capitalist relation as not only a governmental but also a sovereign power relation. In the first part of this essay, I show through a philological commentary on Marx’ use of the adjective ‘vogelfrei’—translated as free, rightless, without protection, outlawed—to characterise the proletariat, that the Marxian proletariat is a figure of what Agamben in his study of sovereign power calls bare life. In the second part of the essay, I show that this sovereign dimension of the capitalist relation is also substantiated by Marx’ analysis of the logic of the capitalist relation as that of the exception. After Carl Schmitt, who wrote that ‘sovereign is who decides on the state of exception’, Agamben has argued that the logic of the exception is the logic of sovereign power. Reconsidered through the lens of Agamben’s argument, Marx’ account of the prehistory of capital reveals that there is a sovereign logic of the exception at work in the capitalist relation. In the final part of the essay, I start from Agamben’s single reference to Marx in his study of sovereign power to discuss the importance of my conclusions for Agamben’s political message.     

Rehabilitating Retributivism

This review essay of Victor Tadros’s new book, “The Ends of Harm: The Moral Foundations of Criminal Law,” responds to Tadros’s energetic and sophisticated attacks on retributivist justifications for criminal punishment. I argue, in a nutshell, that those attacks fail. In defending retributivism, however, I also sketch original views on two questions that retributivism must address but that many or most retributivists have skated past. First, what do wrongdoers deserve – to suffer? to be punished? something else? Second, what does it mean for them to deserve it? That is, what is the normative force or significance of valid desert claims, either with respect to retributivist desert in particular or with respect to all forms of desert? Because the answers that this essay offers are preliminary, the essay also serves as a partial blueprint for further work by criminal law theorists with retributivist sympathies.     

Through the Back Door: Applying Theories of Legal Compliance to Illegal Immigration During the Chinese Exclusion Era

This article applies theories of legal compliance to analyze the making of this country's first “illegal immigrants”—Chinese laborers who crossed the U.S.‐Canadian and U.S.‐Mexican borders in defiance of the Chinese exclusion laws (1882–1943). Drawing upon a variety of sources, including unpublished government records, I explore the ways in which Chinese laborers gained surreptitious entry into the United States during this period and ask, what explains their mass noncompliance? I suggest that while an instrumental perspective is useful for understanding these border crossings, it overlooks other important determinants of noncompliance: normative values and opportunity structures. Specifically, the exclusion laws were widely perceived by the Chinese as lacking social and moral legitimacy, and thus not worthy of obedience. In addition, the existence of smuggling networks and liberal immigration policies in Canada and Mexico played a critical role in facilitating noncompliance. The article concludes with a discussion about the benefits and challenges of using this theoretical framework to analyze noncompliance in immigration law.     

Motivating Management: Corporate Compliance in Environmental Protection*

Based on interviews with facility managers in the electroplating and chemical industries, this study examines regulated firms’ perceptions of how various instrumental, normative, and social factors motivated their firms’ environmental actions. We found that “implicit general deterrence” (the overall effect of sustained inspection and enforcement activity) was far more important than either specific or general deterrence, and that deterrence in any form was of far greater concern to small and medium‐sized enterprises than it was to large ones. Most reputation‐sensitive firms in the environmentally sensitive chemical industry chose to go substantially beyond compliance for reasons that related to risk management and to the perceived need to protect their social license to operate. Almost half our respondents also provided normative explanations for why they complied. Overall, we conclude that there are various, often interwoven, strands that must be taken into account in understanding what motivates corporate environmental behavior, and how they play out depends very much on the size and sophistication of companies themselves and on the characteristics of the industry sector within which they are located.