This revised edition of The Idea of Private Law makes one of the major works of modern legal theory accessible to a new generation of lawyers and students. It includes a new introduction by the author, looking back at the work, its origins, and its aspirations.

The book combines philosophical exposition and legal analysis, and pays special attention to issues of tort law.

A clear and concise digest of Jewish Thought and Philosophy.

“How should a person lead her life?” The purpose of this paper is to suggest some principles (not a complete list) which will serve us ‘intellectual instruments’ for assessing forms of life. These principles are utilitarian in nature, and, as I will argue, essential to a reasonably rich account of personal well-being. The principles suggested are not instrumental, that is, they determine the worthiness of a form of life led by an agent irrespective of whether it satisfies her existing desires (...) and meet her actual preferences. Hence, I will argue that a person can be deprived, that is, categorically deprived, even when most of her desires are satisfied. In the last section of the paper I will argue for the role of education in ‘initiating’ the agent into worthy forms of life, and hence evading the charge of categorical deprivation and that of irrationality. (shrink)

If Kant’s theory of justice is known for one thing, it is for offering a vision of a perfectly just society that is utterly disconnected from the imperfect societies that we occupy. The purity of Kant’s account has attracted criticism from those who claim that if a theory of justice is to be practical, it must offer more than a vision of a perfectly just society. It must also explain how existing societies mired in injustice are to be brought into (...) ever-closer conformity with the ideal that justice prescribes. In this essay, I will argue that this is exactly what Kant’s mature legal and political theory offers. To discern this feature of Kant’s theory, a neglected component must be integrated into his broader framework. This component is what Kant refers to in Toward Perpetual Peace as a permissive law of public right. (shrink)

Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers.

This chapter contains sections titled: The Project of Formalism The Nature of Justification The Structures of Justification The Ground of Justification The Immanent Intelligibility of Law Conclusion References.

Kant's political philosophy draws a distinction between 'passive' citizens who are merely protected by the law and 'active' citizens who may also contribute to it. Although the distinction between passive and active citizens is often dismissed by scholars as an 'illiberal and undemocratic' relic of eighteenth century prejudice, the distinction is found in every democracy that distinguishes between mere inhabitants -- such as tourists and guestworkers -- and enfranchised citizens. The purpose of this essay is both interpretive and suggestive. First, (...) I will argue that Kant's mature distinction between active and passive citizens follows from an institutional deficiency in the the developing state rather than the natural deficiency of passive citizens, as Kant's critics have alleged. Second, I will draw on systematic features of Kant's political thought in order to claim that the state has a duty to create the institutional conditions of universal active citizenship. (shrink)

In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (...) Some explicate its meaning in abstraction from constitutional practice, while others confine themselves to less exalted ideas. The result is a chasm that separates constitutional practice from a theory capable of justifying its innovations and guiding its operation. By expounding the connection between human dignity and the constitutional practices that justify themselves in its light, Jacob Weinrib brings the theory and practice of constitutional law back together. (shrink)

Ownership combines the owner's right to exclude others from the owned object and the owner's liberty to use that object. This article addresses the relationship between using and excluding, by presenting Grotius's and Kant's classic accounts of ownership. Grotius's approach treats use and exclusivity as separate notions, with the latter evolving out of the former. For Kant, in contrast, use and exclusivity are integrated aspects of ownership as a right within a regime of equal reciprocal freedom. This article offers a (...) Kantian critique of Grotius's account of the original right to use, and then presents Kant's notion of usability as the basis for his integration of use and exclusivity. (shrink)

If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper (...) argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously. (shrink)

In legal orders around the world, commitments to democracy, liberalism and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this article are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant’s (...) constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong. (shrink)

. In Aristotle's account, corrective and distributive justice are not particular substantive ideals, but are rather the formal patterns that inhere in interactions and in the legal arrangements that regulate them. Corrective and distributive justice are the structures of ordering internal to transactions and distributions, respectively. The Aristotelian. forms of justice thus constitute the rationality immanent to the relation ships of mutually external beings. This article stresses Aristotle's formalism, contrasting it to modem instrumental conceptions of legal rationality, and defending it (...) against Kelsen's allegations of emptiness. The article concludes with the suggestion that corrective justice, as the conceptual pattern that makes private law what it is, can be considered the formal and final cause of private law. (shrink)

In his ‘On a Supposed Right to Lie from Philanthropy’ Kant makes the astonishing claim that one is not entitled to lie even to save a friend from a murderer. This claim has been an embarrassment for Kant's defenders and an indication of Kant's excessive rigour for his detractors. Responses to SRL fall into three main groups. The first of these groups, that of Kant's critics, claim that SRL demonstrates that Kant's ethical views are so rigorous that they become abhorrent (...) in practice. The second group, Kant's defenders, argues that Kant's conclusions in SRL do not follow from his own ethical principles. The third group, made up of scholars who are generally sympathetic to Kant's position, attempts to explain why a liar is responsible for all the bad consequences that follow from his act by providing an account of Kant's theory of imputation. (shrink)

Over the last few decades, corrective justice has established itself as central to serious academic discussion of the normative dimension of tort liability. This article describes the consensus about corrective justice that is presently emerging, as is evident from work of the author and from recent work of other tort theorists. The framework for discussing this emerging consensus is what the article calls "the juridical conception of corrective justice." The juridical conception seeks to explicate the most general ideas implicit in (...) liability as a normative practice in which the plaintiff makes a claim against the defendant. Under the juridical conception, corrective justice is the synthesis of two complementary abstractions: correlativity and personality. Correlativity articulates at the most general level the relationship between the interacting parties as doer and sufferer of the same injustice. Personality, i.e., the idea of purposiveness regardless of one's particular purposes, similarly articulates at the most general level the conception of the interacting parties that is presupposed in a regime of rights and their correlative duties. The leitmotif of the emerging consensus is the idea of correlativity, which is now effectively accepted by all of the theorists mentioned, even by those who initially rejected it. Personality, on the other hand, has gained less support, because of the apprehension that it implies that rational agency, as elaborated by Kant or Hegel, is a philosophical truth from which tort theory can be derived. This reason for dismissing personality is insufficient. Corrective justice comes into view not by being derived from a notion of rational agency but by reflection on the most general ideas implicit in liability as a normative practice. Personality is merely the abstraction that represents the parties as the bearers of rights and their correlative duties. Like correlativity, it owes its status within corrective justice to its being implicit in the law's doctrines and institutions. Consequently, whether the Kantian or Hegelian notion of rational agency is plausible is a philosophical question that lies beyond tort theory and that does not affect the place of personality within a corrective justice approach to liability. Moreover, if correlativity and personality are indeed complementary, acceptance of the former should lead to acceptance of the latter. Such acceptance would provide the theorists who now reject it with a concept that would be serviceable for their own formulations. In any case, the consensus about the highly structured notion of correlativity indicates that the main lines of the corrective justice approach to tort law are now firmly established. Although refinements inevitably remain to be made, radical revisions are unlikely to result from further reworking the standard material of corrective justice tort theory. Scholarly attention should instead turn to the examination of the place of corrective justice within the legal order as a whole and to the expansion of the corrective justice analysis from tort law to other bases of liability. (shrink)

I am deeply grateful to Nicole Roughan for overseeing this symposium and to Alon Harel, Stephen Riley, Julian Sempill, Alec Stone Sweet, and Ionna Tourkochoriti for their insightful engagements wit...

Plato's Crito is not a treatise on obedience to the law, but a dialogue whose interpretation is not determined by its surface meaning. The initial dream is not mere ornamentation; rather it points to the range of possibilities in Socrates' situation. The speeches of the Laws, with which the dialogue closes, are not intended to be philosophically cogent, since they are inconsistent with the principles laid out in the preceding conversation between Socrates and Crito. The arguments of the Laws are (...) rather directed towards Crito, Socrates' decent and unphilosophic friend. (shrink)

This chapter contains sections titled: Transfer of Value The Transfer Elements of Liability Unjustness Correctively Unjust Enrichment References.

For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has (...) done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties. (shrink)

(2004). ‘Flexible Control’: Towards a conception of personal autonomy for postmodern education. Educational Philosophy and Theory: Vol. 36, No. 1, pp. 3-17.

Seyla Benhabib’s article, “Twilight of Sovereignty or the Emergence of Cosmopolitan Norms” offers a penetrating analysis of the contemporary global order and suggests a normative approach by which to mend its structural failures—viewed from the democratic ideal of popular sovereignty and guided by what she calls “cosmopolitan norms.” The authors take issue with Benhabib's position on both the descriptive and the normative grounds, and make three critical points in this matter: the first two points concern Benhabib's descriptive portrayal of the (...) global order. The third critical point concerns her normative position, i.e., her ideal of the good polity, displayed through her idea of “democratic iteration” operating through global civil society. The critical assessment of Benhabib's views ensues from the authors’ endorsement of the transformationalist position—the state, although somewhat undermined by global processes, still possesses considerable power and maintains a crucial role in determining the trajectory of these processes. (shrink)

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism (...) with distributive rather than corrective justice.Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former. (shrink)

In the early 1990s Israel underwent a so-called constitutional revolution. According to the champions of this revolution, Israel has essentially become, as a result of this momentous event, a constitutional democracy, upholding individual freedom and liberties and allowing for judicial review of parliamentary legislation. Despite the congratulatory rhetoric, it is generally agreed upon that the constitution is still in need of some essential supplements before Israel can qualify as a fully constitutional democracy. The main question addressed in this paper is (...) the following: is it ‘reasonable’ that Israel take the further necessary steps that qualify it as a fully constitutional democracy? The doubts raised in this regard stem from the very concerns that lead political philosophers (mainly Rawls) to stress the unique value of liberal democracy. As they argue, liberal democracy provides deeply divided societies with the best means to secure their legitimacy and political stability. Israel's political realities, I argue, defy this claim. Moreover, Israel's political realities may also carry a valuable lesson to other states, even to seemingly robust liberal democracies. It is not the purpose of the paper, of course, to argue that Israel's existing rule of government should be embraced by other states – far from that. Israel should undergo some radical changes so that it can protect the rights and interests of all its citizens. Yet, to achieve this purpose, it should transcend, I will argue, liberal democracy. As matters stand, simply strengthening its liberal character, Israel's political system may be exposed to a growing challenge to its legitimacy and stability. It should, therefore, reject liberal democracy and especially the principle of neutrality that is intimately connected with a liberal rule of government and embrace, instead, the ideal of multicultural democracy. This ideal, I argue, is better equipped to answer the need of deeply divided societies to secure their legitimacy and stability. (shrink)

My dissertation is about the scope and limits of practical rationality. Specifically, it is intended as a critical essay on instrumental rationality; it will also include some suggestions on how to go beyond instrumental rationality. ;The instrumental conception of rationality expresses a recurrent theme in modern contemporary philosophy. This theme made its first formidable appearance in the work of Hobbes, and since then it has dominated most of the debates about the objectivity of moral values, personal values, and ideals. Depending (...) on their aspirations, the participants of these debates have either accepted the instrumental theme or wanted to expose its shortcomings. ;The instrumental theme is identified with two complementary theses. According to the first thesis, humans are identified as desire-maximizers who are motivated to act only by their actual desires, inclinations, and dispositions. Under this conception, even morality is perceived as being a set of prudential precepts reducible to the agent's concern with the satisfaction of his desires . ;According to the second thesis, rational deliberation has only the limited function of selecting effective means to satisfying one's desires. That is, rational deliberation does not involve the furnishing of the practical agent with new desires and goals, nor are his desires and goals susceptible to rational appraisal. The rationality of a person is a direct function of his capacity to select proper means for satisfying his desires: the more efficient the means, the more rational the person's conduct. The skeptical thrust of the second thesis amounts to the denial of intrinsic value to any desire or goal. ;My critical discussion of the instrumental conception is intended to show two things. First, the ultimate goal of humans cannot be identified solely with the satisfaction of desires; and second, reason is capable of doing more than just selecting efficient means for satisfying one's desires. The idea guiding my critical discussion of the instrumental conception is that personal values and ideals are susceptible to rational appraisal--an appraisal that contributes essentially to the conception of what it means to be rational. Indeed, this kind of appraisal is what carries us beyond instrumentalism. (shrink)

Rousseau's Emile has attracted an avalanche of critical responses. His theme of negative education, or as he defines it, “well-regulated freedom”, has been denounced as outright manipulation in disguise, which instead of respecting the child's autonomy and dignity, places him at the whim of the teacher's machinations and stratagems. His recommendation that the child's imagination be curtailed (that he may not acquire desires which cannot be satisfied) is widely held to militate against one of the most cherished goals of education: (...) the fostering of the natural curiosity of the child. Rousseau is also accused of professing an “ideology of childhood” which ignores the real needs of children. In the sterilized environment which Rousseau proposes for the growing child, affection, praise and approval, are some of the sacrifices made to this ideology. Furthermore, his views on women are considered degrading, outrageous and blatantly sexist. Yet despite the myriad criticisms leveled against his work, Rousseau's Emile highlights one of the most exacting challenges for education — how to educate the child without alienating him. Rousseau connects this issue with the larger problem of alienation: namely, that experienced by man within the modern social order. Rousseau's views anticipate the contemporary debate between virtue-based and deontological ethics. The purpose of this paper is (i) to describe Rousseau's diagnosis of the problem of alienation as it arises in the various spheres of human life, paying special attention to the moral domain, and (ii) to assess the solutions he offers to the problem of alienation. These solutions are based on a conception of the good life which, I argue, is unacceptable. I also argue that this conception dissipates one form of alienation only at the expense of creating another. The paper begins by tracing the changes which the concept of alienation has undergone, and consequently I draw a distinction between two kinds of alienation — conscious and unconscious. I demonstrate that even if Rousseau is successful in offering a remedy for conscious alienation, this very remedy itself gives rise to unconscious alienation. (shrink)

ABSTRACT“How should a person lead her life?” The purpose of this paper is to suggest some principles (not a complete list) which will serve us ‘intellectual instruments’ for assessing forms of life. These principles are utilitarian in nature, and, as I will argue, essential to a reasonably rich account of personal well-being. The principles suggested are not instrumental, that is, they determine the worthiness of a form of life led by an agent irrespective of whether it satisfies her existing desires (...) and meet her actual preferences. Hence, I will argue that a person can be deprived, that is, categorically deprived, even when most of her desires are satisfied. In the last section of the paper I will argue for the role of education in ‘initiating’ the agent into worthy forms of life, and hence evading the charge of categorical deprivation and that of irrationality. (shrink)

In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat to (...) an adequate conception of legal classification. In search of such a conception, I consider how three great legal theorists – Aristotle, Kant, and Hegel – answer three fundamental classificatory questions about private law. First, what is the unitythat underlies the seemingly chaotic array of legal instances? Second, what is the principle of differentiationthat applies to this unity? Third, how are legalinstancessubsumed under this differentiated unity? The focus of this essay is the enduring significance of Kant’s conception of legal classification, which provides an alternative to Waddams’ conception and offers a set of coherent answers to the fundamental classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental classificatory questions by providing a conception of the unity of private law that fails to cohere with their ensuing accounts of its differentiation. (shrink)

This is the story of the clattering of elevated subways and the cacophony of crowded neighborhoods, the heady optimism of industrial progress and the despair of economic recession, and the vibrancy of ethnic cultures and the resilience of ...

(2004). ‘Flexible Control’: Towards a conception of personal autonomy for postmodern education. Educational Philosophy and Theory: Vol. 36, No. 1, pp. 3-17.

Does the inculcation of patriotic sentiments in the hearts of patriotsrender them invulnerable to the malady of self-alienation experiencedotherwise by citizens of the “atomist” state? Rousseau, as will be shownin this paper, provided a positive answer to this question. Accordingly,he accorded utmost importance in his political and educational writingto the education for patriotism. The purpose of this paper is to offer acritical assessment of Rousseau's education for patriotism. I suggestthat when successfully implemented, this education leads to theestrangement and effacement of (...) the self, giving rise to a malady similarto the one Rousseau wanted to cure. If Rousseau's patriotic educationcan really prevent the experience of self-alienation arising due to alack of a community one can call one's own, this very education givesalso rise to the experience of self-alienation arising upon theemergence of a tight-knit patriotic community. Such a community leavesno room for the development of the individual's (or the patriot's)unique talents and the pursuit of his or her self-regarding goals andencourages the emergence, over again, of the experience ofself-alienation. (shrink)

In the last two decades the Israeli educational system has undergone major changes which have transformed it from a state-controlled, overly bureaucratic and almost fully state-financed system into a decentralized, partly locally controlled and increasingly privately financed system. Advocates of this transformation of the educational system appeal to the ideal of parental choice. They argue that the implementation of parental choice programs in education shows more respect to the children and their unique talents, take their self-realization seriously and promotes equal (...) opportunities in education. The ideal of parental choice is also upheld in relation to value of cultural pluralism. Supporters of educational autonomy advocate the restructuring of schools in a way allowing them to develop a unique climate and curriculum consistent with respective communities and parents' preferences. The aim of this paper is to assess critically the changes that Israeli educational system has undergone against the background of the principle of equal educational opportunities. The main claim of the paper is that these changes undermine this principle. It will be argued that these changes actually cater mainly to the educational interests of middle and upper middle classes in Israeli society. (shrink)