Moral luck, responsibility, and systems of tort liability

Bernard Williams drew our attention to what might be wrong with denying the role of luck in our understanding of agency and responsibility. Susan Wolf and David Enoch, in separate works, have asked us to focus instead on what might be virtuous and valuable in embracing that role, and on how our institutions might assist us in that regard. They claim that the agent who ‘takes’ a responsibility that law or morality do not already assign to them may be displaying a special moral virtue or exercising a distinctive moral power. I raise some objections to Wolf’s and Enoch’s case for that claim, and query some of its purported institutional implications for tort law systems

A disaggregative view of customary international law-making

This article argues that some familiar principles, like the protection of reasonable expectations or fair play, can justify the normative force and binding character of some types of customary international practices. We have no reason to think that any one of those principles can justify all customary practices that are typically taken to have such force. Accordingly, instead of proposing a unifying justification for all customary international law-making, I will suggest that the impact of past international practices on the normative situation of international agents is determined not by one master principle, but by a range of different normative principles, each applicable in different situations. If this is correct, i.e., if the principles that give customary practices their normative force vary depending on the kind of principle governing the practical problem that those practices are meant to respond to, both the critique and the defence of customary law-making must proceed on what I will call a ‘disaggregative’ basis

Causation and opportunity in tort

This article shows that we can approach both ‘epistemic’ and ‘conceptual’ problems of causation in tort with the aid of a moral idea sketched out by HLA Hart and developed into a more general account by TM Scanlon. Applied to causation, that idea is that we may justify principles that require people to meet a certain standard of causation and principles that specify a standard of proof for that purpose by appealing to the value for people of the opportunities that the relevant principles make available to them. The idea is developed in the context of epistemic questions, then extended to conceptual ones. The idea explains both why we may apply certain familiar standards of causation in easy cases, and why and how far we ought to relax or modify those standards in hard cases

Between history and values: A study on the nature of interpretation in international law

My thesis discusses the place of evaluative judgements in the interpretation of general international law. It concentrates on two questions. First, whether it is possible to interpret international legal practices without making an evaluative judgement about the point or value that provides the best justification of these practices. Second, whether the use of evaluative judgements in international legal interpretation threatens to undermine the objectivity of international law, the neutrality of international lawyers or the consensual and voluntary basis of the international legal system. I answer both questions in the negative. As regards the first, I argue that international legal practice has an interpretive structure, which combines appeals to the history of international practice with appeals to the principles and values that these practices are best understood as promoting. This interpretive structure is apparent not only in the claims of international lawyers about particular rules of international law (here I use the rule of estoppel as an example) but also in the most basic intuitions of international theorists about the theory and sources of general international law. I then argue that some popular concerns to the effect that the exercise of evaluation in the interpretation of international law will undermine the coherence or the usefulness of the discipline are generally unwarranted. The fact that international legal practice has an interpretive structure does not entail that propositions of international law are only subjectively true, that the interpreter enjoys license to manipulate their meaning for self-serving purposes, or that international law will collapse under the weight of irresolvable disagreements, divisions and conflicts about its proper interpretation

International law and the objectivity of value

The familiar critical claim that propositions of international law cannot be both objective and normative casts a long shadow over international legal theory. The claim relies on the conjunction of two ideas: first, that the truth-conditions of any proposition of international law will include some element of evaluative judgement (about the right or the good) that gives the proposition its normative character, and, second, that evaluative judgements cannot be objectively true or false. International lawyers have two main strategies for defending their discipline against this sceptical challenge. A more modest strategy would accept that legal objectivity and normativity are incompatible and attempt to sidestep the sceptical critique by abandoning the claim to normativity. A second and more ambitious strategy would resist the sceptical challenge by disputing the plausibility of its attack on the objectivity of evaluative judgements. This strategy would rely on the claim that objectivity and normativity are not mutually incompatible and that the aim of producing an account of international law that displays both features is realistic. My aim in this paper is to show that there exists at least one version of this second strategy that can succeed against the sceptical challenge. I argue that scepticism about values is incoherent and, therefore, that the opposition between the objectivity and the normativity of international law is illusory. Setting such scepticism aside will allow international lawyers to concentrate fully on the substantive normative questions that drive theories of international law and on the values that provide the best account of its content