Much contemporary political philosophy claims to be Kant-inspired, but its aims and method differ from Kant's own. In his recent book, Force and Freedom, Arthur Ripstein advocates a more orthodox Kantian outlook, presenting it as superior to dominant (Kant-inspired) views. The most striking feature of this outlook is its attempt to ground the whole of political morality in one right: the right to freedom, understood as the right to be independent of others’ choices. Is Ripstein's Kantian project successful? (...) In this research note I argue that it is not. First, I suggest that Ripstein's notion of freedom is viciously circular. It is meant to ground all rights, but in fact it presupposes an account of those rights. Second, I show that—independently of its inability to ground a whole political morality—such a moralized understanding of freedom is normatively unappealing. (shrink)

In this excellent book Arthur Ripstein develops a broadly Kantian interpretation of tort law and criminal law that is noteworthy for its spirited defense of core features of Anglo-American law and for its uncompromising dismissal of the so-called law and economics approach to these matters. A final chapter extends the analysis to the topic of distributive justice.

In Fairness versus Welfare (FVW), we advance the thesis that social policies should be assessed entirely with regard to their effects on individuals' well-being. That is, no independent weight should be accorded to notions of fairness such as corrective or retributive justice or other deontological principles. Our claim is based on the demonstration that pursuit of notions of fairness has perverse effects on welfare, on other problematic aspects of the notions, and on a reconciliation of our thesis with the evident (...) appeal of moral intuitions. Here we summarize our three arguments and explain that Professor Ripstein's commentary largely fails to respond to them. (We will pass over some of what he says because it has little to do with our book, and we will not address his rather surprising attacks on our scholarship because the reader can readily verify their inaccuracy.). (shrink)

One reason for professing sympathy for such an unpopular view as libertarianism is that one acquires such worthy opponents. Arthur Ripstein's notice was a pleasure to read and, as I would expect, gives one plenty to think about. In this very brief reply, though, I can only identify some points on which I think he may have misstated my view, or on which I can offer a quick rebuttal.

This introduction provides a very brief sketch of the fundamental claims of Arthur Ripstein's Force and Freedom before locating the criticisms of his interlocutors in relation to those claims. Valentini and Sangiovanni are situated as critics of the Kantian frame, while Ronzoni and Williams are critics situated within that frame.

Ripstein’s Kantian argument for the authority of the state purports to demonstrate that state authority is a necessary condition of each individual’s freedom. Ripstein regards an individual as free just in case her entitlement to control what is hers is not violated. After questioning whether his approach adequately distinguishes standards of legitimacy from standards of ideal justice, I argue for the superiority of an alternative conception of freedom. On the view that I defend a person is free just (...) in case she is able to move her body in space unimpeded by others. I argue that this conception allows for a more convincing version of the Kantian argument. (shrink)

A review of Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (Harvard University Press, 2009).

There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the (...) same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society. (shrink)

I. There is a deep tension in the laws of war. The laws that regulate the resort to war (jus ad bellum) are independent from the laws that regulate conduct in war (jus in bello). This implies that...

Suppose that state A wages war against state D. We want to know at least three things. First, does state A have a moral and legal justification for going to war? Second, what may and must those sta...

Arthur Ripstein’s conception of Kantian freedom has exerted an enormous recent influence on scholars of Kant’s political philosophy; however, the conception seems to me flawed. In this paper, I argue that Ripstein’s conception of Kantian freedom as “your capacity to choose the ends you will use your means to pursue” – your “purposiveness” – is both too narrow and too broad: (1) Wrongful acts such as coercive threats cannot choose my ends for me; instead, such acts wrongfully restrict (...) my perceived options. And (2) rightful changes to the context in which I choose that render my means insufficient for my ends restrict my capacity to choose them. Alternatively, my purposiveness reduces to my entitlements; but then freedom as purposiveness is viciously circular or fails as a new approach to the “devastating” objection that motivates it. (shrink)

The article aims to introduce the issue of legal luck and set the direction for further research on this topic. It contains an answer to the question about the relationship between moral luck and legal luck. Three positions are analyzed. The first one, represented by Arthur Ripstein, says that moral luck and legal luck are autonomous issues. The second one, represented by David Enoch, states that legal luck is the result of applying moral luck to law. The third one, (...) on the contrary, refers to the concept of moral luck as a result of applying legal luck to morality. The author discusses diverse conceptions, indicating their strong and weak points, and finally opts for one of them, which leads to a certain view of further research on legal luck. (shrink)