The paper addresses the nature of duties grounded in human rights. Rather than being protections against harm, per se, I contend that human rights largely shield against risk impositions to protected interests. “Risk imposition” is a normative idea requiring explication, but understanding dutiful action in its terms enables human rights to provide prospective policy guidance, hold institutions accountable, operate in non-ideal circumstances, embody impartiality among persons, and define the moral status of agencies in international relations. Slightly differently, I indicate a (...) general understanding of dutiful action that permits human rights to see to the tasks of an institutional morality. (shrink)

Judicial obligation to enforce the law is typically regarded as both unproblematic and important: unproblematic because there is little reason to doubt that judges have a general, if prima facie, obligation to enforce law, and important because the obligation gives judges significant reason to limit their concern in adjudication to applying the law. I challenge both of these assumptions and argue that norms of political legitimacy, which may be extra-legal, are irretrievably at the basis of responsible judicial reasoning.

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of (...) international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally. -/- This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law. (shrink)

Ronald Dworkin once identified the basic question of jurisprudence as: ‘What, in general, is a good reason for a decision by a court of law?’ I argue that, over the course of his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For judges, officials of executive and administrative agencies, lawyers, non-governmental organizations, and ordinary subjects acting in the (...) variety of legal contexts, Dworkin identified the proper basis for a legal decision, and its implications for the form of well-conducted legal reasoning. Dworkin's stance on the above questions can be characterised by two theses. I defend his view by substantiating each. The result is agnostic about the viability of other aspects of Dworkin's legal theory, as it focuses on the grounds of proper legal decision-making. Whatever the fate of his other philosophical views, Dworkin's jurisprudence includes a clear-heade... (shrink)

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer (...) an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications. (shrink)

In a morally non-ideal legal system, how can law bind its subjects? How can the fact of a norm’s legality make it the case that practical reason is bound by that norm? Moreover, in such circumstances, what is the extent and character of law’s bindingness? I defend here an answer to these questions. I present a non-ideal theory of legality’s ability to produce binding reasons for action. It is not a descriptive account of law and its claims, it is a (...) normative theory of legal reasoning for particular social circumstances. The approach is, somewhat like Raz’s influential account, instrumental in character. Yet, it denies that the morally binding legal norms are, in whole or part, exclusionary reasons for the responsible subject. Law’s instrumentality must be given an alternative characterization. (shrink)