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Abstract:
The challenge for any theory about the rule of law is threefold: to explain what the rule of law is, why is it good, and to what extent. This article proposes a comprehensive theory of the rule of law, articulating the conditions that the law has to meet in order to be able to fulfill its pivotal functions in guiding human conduct. The article advances two main theses about these conditions of the rule of law: first, that although the virtues of the rule of law are essentially functional, they are also moral political values, enhancing a range of goods that we value in addition to their functional merit. Secondly, the article comprises detailed arguments purporting to show how legalism can be excessive and that upholding the rule of law virtues is never costless, morally, politically, and otherwise. Within contemporary jurisprudence, this article takes an intermediary position between Lon Fuller's account of the rule of law as exhibiting the "inner morality of law," and Joseph Raz's functional account. The article concludes with an argument showing that the jurisprudential debates about the rule of law have no bearing on the debates between legal positivism and its critics.

Abstract:
This is the draft of a new chapter for the Revised Second Edition of my Interpretation and Legal Theory (forthcoming by Hart Publishing). It focuses on some of the unique moral and interpretative concerns of constitutional interpretation. The interpretation of a written constitution typically involves the power of the judiciary to determine issues of profound moral and political importance, on the basis of very limited textual guidance, resulting in decisions that may last for decades, and are practically almost impossible to change by regular democratic processes. This tension between the scope of the judicial power and the relative paucity of constraints informs the main concerns of constitutional interpretation. Accordingly, this essay concentrates on two main questions: The question of the moral legitimacy of a constitutional regime, and the question of how constitutional interpretation should be carried out. It is one of the main arguments of this essay that the answers to these two questions are closely related. The first part of the essay raises some concerns about the moral legitimacy of written constitutions and of judicial review. The second part strives to elaborate on certain methods of constitutional interpretation in the light of these moral concerns, arguing that constitutional interpretation should be guided by moral reasons and that it ought to be detached from any need to consult the framers' purposes or intentions.

Abstract:
The purpose of this essay is to explore some of the main pragmatic aspects of communication within the legal context. It will be argued that in some crucial respects, the pragmatics of legal language is unique, involving considerations that are not typically present in ordinary conversational contexts. In particular, certain normative considerations that are typically settled in a regular conversational context are unresolved and potentially contentious in the legal case. On the other hand, the essay also argues that a careful distinction between various pragmatic aspects of language use enables us to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions.

Abstract:
In most standard cases, the content of the law is tantamount to the content that is communicated by the relevant legal authority. It has been long noticed by linguists and philosophers of language, however, that the content of linguistic communication is not always fully determined by the meaning of the words and sentences uttered. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed is very often pragmatically enriched by other factors. My purpose in this essay is to explore some of the pragmatic aspects of understanding what the law communicates. I argue that in some respects the pragmatics of legal language is unique, sometimes uniquely problematic. Exploring those problems forms one of the aims of this essay. But I suggest that we can do more than that: by drawing on the distinctions between the various pragmatic aspects of language use, we should be able to offer some generalizations about types of pragmatic enrichment that could be taken to form, or not to form, part of what is actually determined by legal expressions.

Abstract:
In this essay we purport to suggest a comprehensive argument against the existence of moral luck. We argue that once some crucial distinctions are taken into account, our moral judgments are not as sensitive to luck as the proponents of moral luck suggest. The intuitions, or moral opinions, purportedly supporting moral luck, once carefully characterized, can be accommodated consistently with there being no moral luck. Those moral luck intuitions that cannot be thus accommodated do indeed have to be rejected, but doing so, we proceed to argue, comes with an intuitive price that is not unreasonable given the importance of the relevant version of the control condition. Indeed, one way of explaining these moral luck intuitions away is attributing them to a failure to distinguish between them and the more benign intuitions that are consistent with there being no moral luck.

We concentrate on three out of the four main categories of (purportedly) moral luck: luck about consequences of actions (consequential luck), luck in the morally relevant circumstances one encounters (circumstantial luck), and luck about moral character (constitutive luck). As is now common in the literature on moral luck, we try to abstract from the larger issues concerning the freedom of the will, which is why we do not discuss the fourth category, concerning luck in how one's will is caused. There is a worry, however, that abstracting from these (even) larger issues is not philosophically legitimate. We address this worry, though in a somewhat preliminary way, in the last section.

Abstract:
This essay undertakes a liberal critique of the legitimacy of Israel's territorial holdings and its refusal to acknowledge the right of return for the Palestinian refugees. In the first section, the article examines the distinction between Israel's alleged entitlement to the territories it occupied and resettled during the war of independence and those it occupied and resettled in 1967, arguing that from a moral perspective both episodes of conquest are tainted with illegitimacy, and that the former does not fare any better than the latter. In the second section, the essay provides a detailed analysis of the Palestinians' right of return, drawing on a distinction between two main types of argument which have been proposed to rebut such a right: liberal individualistic arguments and the Zionist-demographic argument. The essay argues that from a liberal perspective, both types of argument fail, and therefore Zionism could not claim to adhere to basic liberal values unless it acknowledges the right of return for Palestinian refugees.

Abstract:
In this short essay I argue that the ideal of the rule of law is based on the thesis that it is good, morally speaking, to be governed by law. I present a structured argument in support of this thesis, which is not based on any controversial assumptions about the nature of law. Finally, I propose a reply to Raz's argument that the values of the rule are basically functional, and to the extent that there is any moral worth associated with these functional values they are only negative values.

Abstract:
In this short essay I argue that textualism, as a doctrine of statutory interpretation, is inherently deceptive and therefore immoral. Textualism is typically presented by its adherents as an interpretive practice that is motivated by respect for democracy and respect for the authority of the legislature. But in fact, textualism's preoccupation with ordinary meaning and literal application of statutes is motivated by constraining the legislature's ability to pursue broad regulatory policies. Authorities do not want to be understood literally. Authorities purport to govern, and governance requires cooperation in the spirit of its goals, not strict adherence to the letter of its directives.

Abstract:
The content of communication in a given speech situation often goes beyond what the speaker has explicitly said. The main purpose of this essay is to explore this aspect of linguistic communication in the legal context. The paper begins with a general outline of the dividing lines between semantics and pragmatics, laying out the main distinctions that need to be employed. Next, the paper suggests that the pragmatic aspects of statutory language differ in some important ways from the pragmatics of an ordinary conversation. The paper explains some of these differences which make the understanding of legal language somewhat problematic. Finally, the paper points toward some solutions, based on the distinction between content that is semantically implicated by an utterance and content that is implicated conversationally.

Abstract:
It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart's thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations.

Abstract:
It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This essay purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not at odds with Hart's thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, not is it committed to any particular moral or political evaluations.

Abstract:
This is an essay on the conventional foundations of law. The paper consists of three main arguments: first, that between HLA Hart's view on the rules of recognition and Kelsen's view on the basic norm, Hart's account is more plausible. Second, it argues that the rules of recognition are not coordination conventions, as some commentators have claimed, but conventions of a different kind. Finally, the paper draws a distinction between deep and surface conventions, arguing that there are deep conventions determining what law is, and surface conventions of recognition determining what counts as law in a particular community. This distinction between deep and surface conventions is employed to solve some of the puzzles about the conventional foundations of law.

rules of recognition, basic norm, deep and surface conventions

Abstract:
The purpose of this essay is to argue that considerations of fairness play an essential role in the justification of democratic decision procedures. The first part argues that considerations of fairness form part of a practical authority's legitimacy, and that in the political context, those considerations of fairness entail a principle of equal distribution of political power. Subsequently, the article elaborates on the kind of equality which is required in democratic procedures, arguing that different principles of equality should apply to the deliberation and the decision stages of democracy. Finally, the article concludes with a few sketchy remarks on the possible relations between considerations of fairness and soundness of democratic procedures.

Abstract:
Are there any good reasons to treat previous judicial decisions as legally binding in similar cases, just because they are similar, even if the underlying reasons of the previous decisions determined the result? I argue in this short essay that this is the relevant question about treating like cases alike, and I offer two possible principles that may ground an affirmative answer: the principle that justice should be seen to be done, and the principle of protected expectations. Both answers are criticized as over inclusive and only partly defensible. Finally, the essay concludes with a suggestion that there are two modes of analogical reasoning in adjudication, and that one of them may rationalize a certain type of cases in which like cases should be treated alike.

Abstract:
In this short essay I argue that the main insight of Murphy and Nagel's book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis (which they also seem to endorse) that people have a right to the fruits of their labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one's labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor, and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this last conclusion is not affected by the nature of the right to private property.

Murphy and Nagel, natural rights

Abstract:
In this short essay I argue that the main insight of Murphy and Nagel's book, The Myth of Ownership, that people have no right to their pre-tax income, is not supported by their claim that the right to private property is not a natural right. The non-naturalness of the right to private property, I argue, is completely irrelevant to their moral argument. The plausibility of their moral conclusion derives from the thesis (which they also seem to endorse) that people do have a right to the fruits of their labor, maintaining, however, that there is no possible conception, morally speaking, of what the fruits of one's labor are, independent of a system of legal and social norms that constitute the terms of fair bargaining, pricing, etc. People can only have a right to a fair assessment of the added value of their labor, and the latter cannot make any sense independent of the entire system of norms prevailing in the relevant society. I argue that this conclusion is not affected by the nature of the right to private property.

Abstract:
This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments which purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.

constitutionalism, Waluchow, judicial review, bill of rights

Abstract:
This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments that purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.

Abstract:
This essay challenges the widely held view that legislative integrity is a distinct political ideal. According to this ideal, lawmakers should try to make the total set of laws they enact as morally coherent as possible. I advance two types of arguments against this ideal. First, I try to show that the ideal of legislative integrity is directly at odds with the value of pluralism and the commitment of a liberal state to respect reasonable pluralism. Second, I explore the main causes of the failure of legislative integrity in democratic legislatures, arguing that there is nothing regrettable about these causes, on the contrary, they manifest commendable aspects of democratic law making.

Abstract:
The content of the law is often determined by what legal authorities communicate. Both lawyers and philosophers of language know very well, however, that the full content of communication in a natural language often goes beyond the meaning of the words and sentences uttered by the speaker. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed on particular occasions of speech is often pragmatically enriched by various factors. The standard model in the pragmatics literature, however, focuses on ordinary conversations, in which the parties are presumed to engage in a cooperative exchange of information. The legal context offers an example of conversation that is strategic in nature. Part of my purpose here is to show that the pragmatics of strategic conversation has certain features that deviate from the standard model.

The first section focuses on two main instances of implied communicative content, namely, implicatures and utterance presuppositions. I argue that in both of these cases, there is an important distinction between implied content that is semantically encoded in the utterance - and therefore forms part of what the law communicatively determines - and implied content that is essentially contextual and thus much more problematic in the legal case. In the second section I focus on the idea of pragmatic commitments and their normative foundations. My main concern here is to explore the normative framework of strategic speech and ways in which it differs from ordinary conversations. Finally, I will try to explain in what sense legal speech is strategic, and demonstrate how the pragmatic aspects of strategic speech actually work in the legal context.

Abstract:
The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual's right is the right to a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself.