This is a reply to “What Makes a Home” by Kimberley Brownlee and David Jenkins. In it, I defend my own account of homelessness, which I call the ‘legal conception’ against their criticism and try to illustrate the differences between my view and theirs, which I call the ‘social conception.’.

Joseph Raz’s account of norms provides that a norm requiring an agent to φ is a reason to φ protected by an exclusionary reason not to act on some other reasons. I present a dilemma concerning the determination of the contents of this set of excluded reasons. The question is whether or not the set includes reasons that count in favour of φing. If the answer is yes, the account is committed to a picture of norms that seems inconsistent with (...) the phenomenology, in that it rules out acting on the very reasons on which the norm is based. If the answer is no, the account licenses a problematic form of double counting of reasons. I conclude that Raz’s protected reasons account of norms must be rejected, and tentatively suggest a solution to the problem posed by the dilemma. (shrink)

Legal rationalist: law claims to give its subjects reasons for action. Normative reasons intuition: Reasons for action being key, the obvious way to establish that law makes a practical difference in people's deliberations is by arguing that the law claims to give reasons for action to its subjects. Explanatory Reasons Intuition: "And while it is possible to be confused about our normative reasons, it seems unlikely that everyone is confused all the time; so the fact that people consistently take the (...) law as their motivating reason and guide their conduct by the law does seem to suggest that the law does provide normative reasons for its subjects." And if it’s a necessary feature of law that it claims authority, then the argu- ment seems to establish that law claims to provide reasons for its subjects. Schematically the argument as a whole goes like this: The law claims to be a legitimate authority. If a legitimate authority directs a subject to φ the subject is obligated to φ ). The fact that an agent is obligated to φ is a reason for her to φ. So the law claims that its directives are reasons......Obligations as Reason-Giving : the fact that A is obligated to φ is itself a reason for A to φ. Unfortunately for the Legal Rationalist, OAR is false. Legal obligation has certain features which mean that the fact that a certain action’s being legally obligatory cannot itself constitute a reason to perform that action." Will explain away the intuitions in terms of triggering, and show how law can make a normative difference that is consistent with the falsity of OAR. Law's claim, and normative impact, can be captured exclusively in terms of second-order reasons. PartofwhatHartisafterhereistheideathatdeliberationon the matter of whether or not to φ is closed or settled by the obligation. But deliberation is cut off because the law has reached some sort of conclusion or answer or verdict on the question of whether or not to φ. The legal obligation not to φ contains a practical verdict about φing: it is not to be done. This idea – that the legal obligation not to φ provides or contains a verdict that φing is not to be done – is the idea that legal obligation is verdictive. For something to be verdictive is for it to express or embody a verdict or conclusion as to what ought to be done. It is plausible to say that wrongness is verdictive. So to say that such-and-such an action would be wrong is to express a verdict on that action – it is one which should not be done. To get a handle on the idea of the verdictive it helps to contrast it with the contributory. A contributory consideration is one which contributes to the verdict, by increasing the weight on the verdict’s side. So that φing would harm someone, or would cause extreme suffering, or would have costs that vastly outweighed any benefits, say, would be contributory considerations on the side of the verdict that φing would be wrong." "Wrong" is verdictive, and so it cannot itself be a reason for the action - it cannot be a reason for itself. Obligation and wrong in law are very close, and obligation should be treated as verdictive. This shows us that OAR is false. (shrink)

This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law’s insistence that fair terms of interaction be maintained between individuals—a requirement that typically manifests itself in the need for the plaintiff to prove factual or “but-for” causation—sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, (...) where the plaintiff suffers the very sort of harm that rendered the risk unreasonable, and where the plaintiff cannot prove which of the defendants was the but-for cause of her loss. This approach provides one way to understand the Supreme Court of Canada’s recent decision in Resurfice Corp. v. Hanke. We find support for our approach in various concepts that underlie negligence liability quite generally. These underlying concepts are normative in nature, and manifest core notions of justice and fairness. We argue that approaches to the problem of factual uncertainty that appeal to such normative principles to make sense of atypical cases of causation are in no way inconsistent with the nature and structure of negligence law. Rather, the opposite is true: in taking negligence law seriously as law, such approaches are instead reflective and supportive of it. (shrink)

This is a Critical Notice of From Normativity to Responsibility, Joseph Raz’s brilliant treatment of the nature of normativity and reasons. Building on the thought that the law claims to give reasons to its subjects, I consider the application of Raz’s views about reasons to some questions in legal philosophy. I concentrate on what I take to be the central idea of the book, Raz’s “normative/explanatory nexus”, according to which a consideration cannot be a reason for an agent to perform (...) an action unless the agent could follow the consideration in performing the action. I show how the nexus can explain some of the Fullerian principles of legality. And I examine the implications of the nexus for our understanding of the psychology of legal obligation; here I suggest that the nexus might cause trouble for Raz’s own well-known exclusionary reasons account of legal obligation. (shrink)

In this paper, I attempt to clarify the ideas of equality underlying section 15 claims for benefits such as welfare and health care; I use the name ‘economic rights claims’ for these types of claims. I adopt Joseph Raz’s division of equality claims into rhetorical egalitarian claims, which are based in a failure to equally respect a universal claim , and strict egalitarian claims, which are based on an actually existing unequal distribution of resources . I show how the dignity-based (...) approach to equality stemming from Law v. Canada is an example of a rhetorical egalitarian claim. With this groundwork set, I turn my attention to the economic rights claims. I survey three reasons for thinking that an unequal distribution of some benefit might, even absent any failure to respect or recognize the dignity of those at the losing end, be thought of as wrong or unjust. The first two reasons – an appeal to an idea of sufficiency, and the fear that some stigma might be associated with the inequality – I reject in favour of the third, which is that in a situation in which all the participants have some equal claim to a benefit, a fair procedure will result in their benefiting equally. Following John Rawls, I suggest that our society, as a cooperative venture for mutual advantage, creates in its members at least a prima facie equal claim to share in the society’s benefits. The economic rights claims, then, are claims that this prima facie equal claim has not been respected. But the benefits being claimed for, as benefits created by the society, are not benefits automatically due to everyone just in virtue of their humanity, instead they are due to the worst-off once the best off have come to be able to benefit from them. Thus they take a strict egalitarian form – once some members of our society benefit in a certain way, then the equality of all members as contributors to the cooperative venture for mutual advantage implies that the other members of our society gain a claim to that benefit. The fact that these economic rights claims are strict egalitarian claims means they cannot be grounded in arguments about dignity, as dignity-based claims are rhetorical egalitarian claims for benefits due to all in virtue of their universal human dignity. I conclude by returning to Law to highlight a passage which I believe provides a grounding for a recognition of economic rights in line with my argument; I also make some brief comments on the need for a stricter division of labour between section 15 and section 1 in the context of economic rights claims and on the effect of this argument on Canadian federal law more generally. (shrink)