Larry Alexander

The Rule of Rules: Morality, Rules, and the Dilemmas of Law

Rules perform a moral function by restating moral principles in concrete terms, so as to reduce the uncertainty, error, and controversy that result when individuals follow their own unconstrained moral judgment. Although reason dictates that we must follow rules to avoid destructive error and controversy, rules—and hence laws—are imperfect, and reason also dictates that we ought not follow them when we believe they produce the wrong result in a particular case. In The Rule of Rules Larry Alexander and Emily Sherwin examine this dilemma. Once the importance of this moral and practical conflict is acknowledged, the authors argue, authoritative rules become the central problems of jurisprudence. The inevitable gap between rules and background morality cannot be bridged, they claim, although many contemporary jurisprudential schools of thought are misguided attempts to do so. Alexander and Sherwin work through this dilemma, which lies at the heart of such ongoing jurisprudential controversies as how judges should reason in deciding cases, what effect should be given to legal precedent, and what status, if any, should be accorded to “legal principles.” In the end, their rigorous discussion sheds light on such topics as the nature of interpretation, the ancient dispute among legal theorists over natural law versus positivism, the obligation to obey law, constitutionalism, and the relation between law and coercion. Those interested in jurisprudence, legal theory, and political philosophy will benefit from the edifying discussion in The Rule of Rules.

Reconsidering the Relationship among Voluntary Acts, Strict Liability, and Negligence in Criminal Law

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelmans deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. (I omit consideration of criminal laws premised on immoral norms.) I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability.

What are Constitutions, and What Should (and Can) They Do?

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other non-constitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from non-constitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.I shall proceed as follows: In section I, I take up law’s principal function of settling controversies over what we are morally obligated to do. In section II, I then relate law’s settlement function to the role of constitutional law. In particular, I discuss how constitutional law is distinguished from ordinary law. And I also discuss the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III, I address the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, I discuss constitutional change, both change that occurs through a constitution’s own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

Retributivism and the inadvertent punishment of the innocent

Retributivism is generally thought to forbid the punishment of the innocent, even if such punishment would produce otherwise good results, such as deterrence. It has recently been argued that because capital punishment always entails the risk of executing an innocent person, instituting capital punishment is tantamount to intentionally taking innocent lives and therefore cannot be justified on retributive grounds. I argue that there are several versions of retributivism, only one of which might categorically forbid risking punishing innocent persons. I also argue that our moral practices reveal either that we do not hold this particular version of retributivism, or that we reject equating risking punishing the innocent with intentionally doing so. *** DIRECT SUPPORT *** A9102008 00005

What is Freedom of Association, and What is its Denial?

Freedom of association, as I understand it, refers to the liberty a person possesses to enter into relationships with others - for any and all purposes, for a momentary or long-term duration, by contract, consent, or acquiescence. It likewise refers to the liberty to refuse to enter into such relationships or to terminate them when not otherwise compelled by ones voluntary assumption of an obligation to maintain the relationship. Freedom of association thus is a quite capacious liberty. I am going to approach the topic of freedom of association by attempting to illustrate what its denial would look like in each of several domains. I shall then ask why a government might seek to deny it and then, in the articles final section, on what grounds such a denial would violate the rights with respect to freedom of association of those affected.

Affirmative duties and the limits of self-sacrifice

American criminal law reflects the absence of any general duty of Good Samaritanism. Nonetheless, there are some circumstances in which it imposes affirmative duties to aid others. In those circumstances, however, the duty to aid is canceled whenever aiding subjects the actor to a certain level of risk or sacrifice, a level that can be less than the risk or sacrifice faced by the beneficiary if not aided. In this article, I demonstrate that this approach to limiting affirmative duties to aid encounters the same problem of moral arbitrariness as does a “moral catastrophe” override of deontological side-constraints.

Plastic Trees and Gladiators: Liberalism and Aesthetic Regulation

The hallmark of modern liberalism is its embrace of the Millian Harm Principle and its antipathy to legal moralism. In this article I consider whether aesthetic regulations can be justified under the Harm Principle as that principle has been elaborated by Joel Feinberg. I conclude that aesthetic and other regulations that most liberals regard as unproblematic are actually instances of legal moralism.

Harm, Offense, and Morality

Joel Feinberg’s magnificent four volume work, The Moral Limits of the Criminal Law, represents a sustained and comprehensive argument regarding what conduct is appropriately regulated through criminal prohibitions and sanctions. Feinberg’s conclusions are essentially those of the Millian liberal: Conduct that causes harm or offense to others may be criminalized, but conduct that is harmful only to the actor or that is a harmless immorality may not be. Feinberg’s governing principle, however, is not Mill’s maximization of utility but is instead respect for individual autonomy. For Feinberg, respect for autonomy delimits the legitimate boundaries of concern with others’ conduct insofar as the concern is expressed through criminal prohibitions.

Striking back at the empire: A brief survey of problems in Dworkin's theory of law

ConclusionIn Laws Empire Dworkin remains committed to carving out a middleground between natural law and legal positivism. But natural law andlegal positivism are best viewed as complementary answers to differ-ent questions, There is no middle ground between them. Nor is thequestion that Dworkins Integrity asks one that could be coherentlyanswered i f it were an important question. Fortunately, it is not.

Natural advantages and contractual justice

Anthony Kronman has argued that libertarians cannot distinguish non-arbitrarily between legitimate and illegitimate advantage-taking in contractual relations except by reference to a liberal, wealth-redistributive standard Kronman calls “paretianism.” We argue to the contrary that libertarians need not concede that any advantage-taking in contracts is legitimate and thus need not be liberal “paretians” with respect to advantage-taking.