Private liability without wrongdoing

Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs do not seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person, for example, may be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs do not generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability. Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff’s moral permission to enforce her apparent rights. Switching our gaze from the defendant’s wrongdoing to the plaintiff’s moral permission to enforce her rights will not be normatively consequential if the plaintiff’s moral permission arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and the plaintiff’s moral permission. Thus, by reconceptualizing private liability in terms of a plaintiff’s moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality.

Introduction

This volume presents contributions from scholars spread across three continents and domiciled in twelve different countries, whose common interest is evidence theory as related to law. Evidence theory as related to law stayed mostly dormant until the advent of the “New Evidence Scholarship” in the mid-eighties of the twentieth century. The publication of William Twining’s book, Theories of Evidence: Bentham & Wigmore in 1985 and the 1986 Boston University Law Review Evidence Symposium volume have changed things around. These publications have irreversibly changed the direction of the study of evidence by shifting evidence scholars’ focus from rules to reasons. The shift from rules to reasons was transformative along two dimensions: interdisciplinarity and internationalization. The realization that reasons moving the factfinding process forward are antecedent to, and consequently more important than, evidentiary rules has opened up new paths of inquiry that connected adjudicative factfinding to epistemology, mathematics, economics, psychology, sociology, political morality, and linguistics, and led to further and richer explorations of how theories of probability and induction affect the understanding and reform of the law of evidence. The primacy of reasons has also created a sizable common ground for theorizing for evidence scholars from different countries. With a focus on reasons rather than rules, the differences between factfinding in the more regulated Anglo-American systems vis-à-vis the freer European systems—once understood as dramatic—became less important. The Introduction to the volume presents its chapters and highlights the major philosophical and interdisciplinary insights discussed in it.

The Idea of Discursive Constituent Power

The question addressed by this article is whether a form of constituent power exists at the EU level. It is argued that European integration has not suppressed the idea of people as constituent power. Instead, the idea of ‘people’ has been constructed through the discourses of security and rights. Ever since the early stages of European integration, the security and rights discourses have consisted in the articulation of a meta-constitutional rationale, which is here called the ‘security of the European project’, i.e. a form of political morality that is pursued by the EU as a polity over time and aims at its own survival. Security and rights discourses have contributed to constructing two ideas of ‘people-as-constituent-power’. The first idea is that of ‘mobile people’, i.e. people exercising EU free movement rights. The second idea is that of ‘peoples’ in the plural, conceived as States and citizens at the same time. Nevertheless, these discourses are characterised by a certain degree of ambiguity and have been unrolling as if the development of the EU polity was a mere technical, neutral matter. This state of affairs cannot continue: the European project has always been a political project, and, as integration reaches its more advanced stages, the time has come to disclose its political nature and address conflict openly.

Army of the Wronged: Autobiography, Political Prisoners, and Black Radicalism

Shelby presents an analysis of the warfare between Black radicals associated with the Black Panther Party and the US government during the era of the Black Power movement. Shelby observes that these would-be revolutionaries regarded US law as having no authority over them. The radicals also thought that their declaration of war was reciprocated, that state officials were self-consciously using the tactics and machinery of war to repress this internal uprising and insurgency, including killing, capturing, and incapacitating Black radicals. Shelby contends that there is truth in this characterization, and lessons to be learned from it. He explores the underlying questions of political morality through an examination and comparison of four autobiographies—by George Jackson, Huey Newton, Angela Davis, and Assata Shakur. Each spent significant time in prison, and each regarded themselves as political prisoners and, in some ways, as prisoners of war. Attention is given to the narrative conventions these authors rely on to achieve their aims, a tradition that can be traced to, but differs in important ways from, African American slave narratives.

Intellectual History as History of Engagement? The French Scholarship

Few intellectual histories of France by non-French authors in recent years have produced the bitter polemic that Tony Judt's Past Imperfect: French intellectuals (1944–1956) elicited. Published in French at the same time as the English edition in 1992, the book was held to account for its questionable historiographical legitimacy, alleged inaccuracy in the treatment of sources, and not-so-hidden partisanship, even if it also received some positive reviews from authoritative specialists in the field in important national newspapers. Nevertheless, the general tone and content of the French academic reviews were largely negative, and in many ways this response was unsurprising: how could a study arguing that a certain dominant (and still alive) Jacobin philosophical tradition was characterized by a “marked absence of a concern with public ethics or political morality” be read otherwise? Further, in an often caustic style, Judt accused the postwar French intellectuals of being seduced by totalitarian tendencies. Such charge, not surprisingly, provoked a pointed defence of the intellectual and historiographical national sensibility, which was not above resorting to Continental stereotypes against the “Anglo-Saxon” cultural model. Nor was the negative reception surprising to Judt, who positioned himself explicitly in the text as an outsider, belonging to a different intellectual tradition. It is useful to remember this uproar today as one considers new books by Gisèle Sapiro and François Dosse, as it illustrates three important issues in a lively academic register: the continuity of a French approach to intellectual history, its difference from Anglo-American traditions, and a possible—although mediated—angle for understanding the nature of this French particularism, through the discussion of the historiographic projection of the idea of intellectual status.

Pornography

This chapter discusses pornography, which is often defended on the basis of freedom of speech or expression. Even if some pornography is not just offensive but actively harmful, it is speech; and, as such, enjoys the special protections generally extended to speech in liberal societies. In the United States, pornography even enjoys legal protection under the free speech clause of the First Amendment of the US Constitution. The chapter then critically examines the traditional free speech defence of pornography, as well as prominent feminist arguments for legal regulation of some pornography, before turning to consider a surprising but increasingly influential free speech-based line of argument against pornography. In discussing these matters, the primary focus will be on general issues of political morality, rather than questions of legal interpretation.

Anti-Modalities

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters—the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of constitutional law and to investigate their implications. The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning—from general moral theory to emotional judgment to many cost-benefit calculations—the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law’s “resonance gap.” Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm. Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach.