Over the centuries, many philosophers have written about injustice. More recently, attention has turned to a previously little-recognized form of injustice – epistemic injustice. The philosopher Miranda Fricker coined the phrase ‘epistemic injustice’ – an example being when your credibility as a source of knowledge is unjustly downgraded (perhaps because you are ‘just a woman’ of the ‘wrong’ race). This interview with Miranda explores what epistemic injustice is, and why it is important.

Some laws cannot yet be entirely abrogated in a current political situation, though permitting grave injustices against some individuals; for example, unborn and/or disabled individuals. In supporting the passing of new ‘imperfect’ laws that protect only some of those who now lack protection, do we ourselves discriminate unjustly against those remaining unprotected? Or does that depend on factors such as our intentions – including what we intend that others intend? How may we collaborate with colleagues who intend, and (...) perhaps explicitly defend, the continuation of remaining, closely-related injustices, although they are willing to join us in trying to improve some aspects of the status quo? This paper explores the moral constraints on our attempts to extend the law’s protection to some, but not to all, of those individuals currently deprived of such ­protection and at risk of serious harm. (shrink)

A difficult task for politicians who want to fight injustice without doing wrong themselves is identifying where it is permissible to vote for and/or promote so-called “imperfect laws” which somewhat improve existing unjust legal situations but leave closely related injustices intact. One approach is to seek a “selective ban” on some injustices which are politically preventable. This approach is acceptable at least in principle, unlike the approach of “regulation”—i.e., permitting or instructing others to do, or prepare to do, (...) the unjust act in specified ways. The latter necessarily involves us in formal cooperation with evil: wrongly intending that others choose wrongly; for example, that abortion doctors deliberately prepare for abortion, albeit in ways that make an abortion less risky or less likely. In relation to parental consent or parental notification, and to pregnancy counselling and provision of information to pregnant women, while there may be ways of requiring these without complicity in others’ wrongful choices, this is at least more difficult than is often recognised. There can also be problems of principle in seeking consensus with fellow-legislators who may positively intend and even promote the continuation of remaining injustices even as they collaborate with more consistent reformers in passing laws which mitigate injustice overall. (shrink)

Legitimate political institutions sometimes produce clearly unjust laws. It is widely recognized, especially in the context of war, that agents of the state may not enforce political decisions that are very seriously unjust or are the decisions of illegitimate governments. But may agents of legitimate states enforce unjust, but not massively unjust, laws? In this paper, I respond to three defences of the view that it is permissible to enforce these unjust laws. (...) Analogues of the Walzerian argument from patriotism, the Vitorian epistemic argument, and the proceduralist argument found in Rawls, Estlund, and others do not show that law enforcement is usually permitted to enforce unjust laws. Finally, I develop a proceduralist argument for the thesis that law enforcement is permitted to disregard unjust laws. I conclude by considering objections concerning the problem of optimizing society for justice and the problem of law enforcement agents with deplorable moral beliefs. (shrink)

In his 1963 response to an open letter from eight white religious leaders chastising his involvement in Birmingham, Martin Luther King, Jr. explained that civil rights activists’ blatant breaking of some laws while obeying others was the result of two types of laws: just laws and unjust laws. Civil rights activists believed they had a legal responsibility to obey just laws and a moral responsibility to disobey unjust laws. Today, new civil rights (...) struggles continue to challenge unjust laws that shred the fabric of democracy that America espouses. Drawing upon both the Civil Rights Movement and the contemporary Movement for Black Lives, this article argues that unjust laws and practices must be broken and challenged before a just society is established. It identifies four ethical strategies for social activism: collective work and responsibility, strategic timing and economic disconnection, political mobilization, and faithful perseverance. (shrink)

A legitimate expectation in a liberal democracy is that public officials enforce the law regardless of its content; when they don’t do so, their actions tend to be publicly condemned. This expectation puts street-level bureaucrats in a moral dilemma when they consider that a certain law is unjust: either they don’t enforce the law and violate their duties to the citizenry, or they enforce it and become complicit in injustices. This paper argues for the legal permission of public officials (...) to disregard legal mandates for moral reasons. Call it official disobedience. Contrary to common intuitions, I show that official disobedience would foster the principles of and improve governance in liberal democracies: it accommodates public officials’ personal autonomy and yields three main democratic benefits. First, information about the outcomes of the law would become available for lawmakers; second, in the aggregate, it would protect citizens from injustices; third, it would improve the moral character of bureaucrats. (shrink)

The classical view of natural law, often traced to Aquinas' statement that "unjust law is no law at all," finds few defenders today. Even those most sympathetic to natural law theories do not embrace the classical account, but, instead, convert Aquinas' claim into a claim of political theory or construct new "natural law" accounts about the connection between legal and moral principles in a theory of adjudication. In this paper, I defend the view that extreme injustice disqualifies otherwise valid (...) official directives from counting as "law”. Indeed, I suggest that modern positivism's characterization of the normative claims that typify legal systems leads inevitably to the conclusion that "law," as a conceptual matter, must be understood by insiders who employ the term to admit moral limits on what can count as "law." I proceed as follows. First, I begin with some preliminary clarifying comments about methodology and the precise issue under discussion. Second, I describe four leading theories about the nature of law and consider how central ideas in each theory can be seen to generate opposing ideas that lead in turn to opposing models of law. Third, I state briefly the affirmative case for thinking that the classical natural law view is correct. Fourth, I identify basic mistakes in current approaches to the question about the nature of law that help explain why modern positivism has overlooked the manner in which it leads logically to the classical natural law view. Finally, I add some brief remarks about why it matters: what practical consequences follow from acknowledging that there are moral limits on what can count as law. (shrink)

The widespread confusion of Nature with God and "natural" with holy has far-reaching negative consequences, from misinformation about everyday food and health choices to mistaken justifications of sexism, racism, and flawed economic policies.

Unjust enrichment continues to fascinate and frustrate. While it is clear that unjust enrichment is a form of private law liability distinct from that found in property, contract, or tort, it remai...

Can a state punish citizens for breaking unjust laws? In his engaging defense of democratic political authority, Stephen P. Garvey answers affirmatively. Guilty Acts, Guilty Minds sets up a debate...

This book is an interpretation and critique of Habermas's philosophy as contained in his book, Between Facts and Norms. The main argument is that while Habermas does succeed in laying out foundations, conceptual and methodological, for the philosophy of law, the book is flawed by a fundamental contradiction between a democracy ruled by law and capitalism.

Restatements of the law are usually considered a uniquely American phenomenon, explained by the complexities and uncertainties of a multi-jurisdictional common law system. They have also been subject to the accusation from legal realists that they are misleading, conservative and formalistic exercises. This review interrogates the role of the restatement in a jurisdiction with a singular common law tradition, focusing on Andrew Burrows’ recent Restatement of the English law of Unjust Enrichment. It compares and contrasts his restatement with previous (...) American restatements and with other types of ‘public statement’ of private Law, such as codes and legal treatises. It concludes that there may be good (and particular) reasons for restating unjust enrichment law in England and that Burrows’ work is unique in its form and purposes. This article’s central thesis is that a restatement can provide an important public platform for intellectual debate and a powerful centripetal force addressing legal fragmentation and uncertainty even in a singular common law jurisdiction. It further suggests that modernist doctrinal enterprises of this type may be more sympathetic to the critical insights of legal realism than is sometimes suggested. (shrink)

(2006). Just or Unjust War? International Law and Unilateral Use of Armed Force by States at the Turn of the 20th Century. Journal of Military Ethics: Vol. 5, No. 1, pp. 74-76.

This article offers an understanding of the normative basis of unjust enrichment. It begins by considering whether the right at stake in cases of unjust enrichment fits within a Kantian conception of right that treats free agency as the sole aspect of the person commanding respect. It argues that it does not because, in cases of unjust enrichment, recovery does not depend on finding a violation of the plaintiff's bare freedom to choose. The article then argues that (...) unjust enrichment vindicates the plaintiff's right of self-determination—the realization of the capacity to live from self-chosen ends—when the laws of property and contract threaten to undermine it. This resolves the puzzles of unjust enrichment law that remain mysterious on other accounts, such as how the plaintiff can have a right to recovery even though property has been effectively transferred to the defendant, why the plaintiff may recover even though the defendant has been purely passive and has committed no wrong, and why unjust enrichment fails to exhibit the structure of corrective justice. (shrink)

States restrict immigration on a massive scale. Governments fortify their borders with walls and fences, authorize border patrols, imprison migrants in detention centers, and deport large numbers of foreigners. Unjust Borders: Individuals and the Ethics of Immigration argues that immigration restrictions are systematically unjust and examines how individual actors should respond to this injustice. Javier Hidalgo maintains that individuals can rightfully resist immigration restrictions and often have strong moral reasons to subvert these laws. This book makes the (...) case that unauthorized migrants can permissibly evade, deceive, and use defensive force against immigration agents, that smugglers can aid migrants in crossing borders, and that citizens should disobey laws that compel them to harm immigrants. Unjust Borders is a meditation on how individuals should act in the midst of pervasive injustice. (shrink)

Just war theory is currently dominated by two positions. According to the orthodox view, provided that jus in bello principles are respected, combatants have an equal right to fight, regardless of the justice of the cause pursued by their state. According to “revisionists” whenever combatants lack reasons to believe that the war they are ordered to fight is just, their duty is to disobey. I argue that when members of a legitimate state acting in good faith are ordered to fight, (...) they acquire a pro-tanto obligation to obey which does not depend for its validity on the justice of the cause being pursued. However, when the war is unjust, this obligation may be overridden, under certain conditions, by the obligation not to contribute to the unjustified killing of innocents. This is because the pro-tanto force of the duty to obey the law is best understood in terms of “presumptive”, rather than “exclusionary” reasons for action. This approach captures the insights of both the orthodox and the revisionist view, while avoiding the problems that afflict each of them. (shrink)

Introduction to special issue on justice and gender (in)equality in Law, Ethics and Philosophy.

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

The common law's approach in the law of unjust enrichment is to enumerate specific «unjust factors» as permissible causes of action in claims for restitution. This approach has come under attack, inter alia, for being unnecessarily complicated. The claim is that the civilian approach, with its single ground of absence of legal cause for the transfer, is preferable since the operative unjust factor in any particular case is irrelevant to the restitutionary response. In defence of the common (...) law's approach, this article tenders four aspects of the restitutionary response which, it is claimed, are illuminated by reference to the nature, context, and effect of the operative unjust factor in any particular case. They are: (i) the availability of the defence of change of position; (ii) the justifiability of certain «bars» on rescission and the permissible mode of mutual restitution on rescission; (iii) the appropriate measure of enrichment where restitution is, or must be, effected in money; and (iv) two possible justifications for the controversial remedy of partial rescission. (shrink)

Tekst dotyczy zaproponowanej przez Arthura Kaufmanna koncepcji prawa do sprzeciwu (wobec władzy - wobec niesprawiedliwych ustaw) "w drobnej monecie". Koncepcja ta stanowi punkt wyjścia do refleksji nad formułą Radbrucha (nad czymś, co określam mianem "ciemnej strony" formuły Radbrucha), nad możliwością modyfikacji tej formuły i nad rozproszoną kontrolą konstytucyjności jako sposobem realizacji prawa do sprzeciwu "w drobnej monecie".

This review article examines R Chambers, C Mitchell and J Penner (eds), Philosophical Foundations of the Law of Unjust Enrichment. These sophisticated essays suggest that a corrective, bipolar analysis of autonomous unjust enrichment is broadly right. However, the normative rationale is complex. From the plaintiff’s perspective, there are autonomy-based grounds for drawing an analogy to voidable rather than void property transactions. For similar reasons, the role of a corresponding-enrichment requirement primarily concerns identification of the defendant rather than establishing (...) injustice. (shrink)

This article discusses the well-known verdict of Vattel's legal positivism in relation to concepts of modernity and the European State System and aims at a re-interpretation of Vattel's understanding of the modern state, just war and the international order. It wants to show that even though States and individuals do not obey the same logic and reason, Vattel was neiter a Hobbesian thinker nor, as Kant claimed, a 'sorry comforter'. The main reason for this is that Vattel's doctrine of the (...) war en forme does not imply a break with the tradition of just war. Instead, it should be read as a reformulation of the inegalitarian notion of the enemy as proposed by just war doctrines. Pointing out to the persistance of a jusnaturalistic framework, the article shows that Vattel's concept of justus hostis is built on the same conceptual framework as the concept of the enemy of the human race. (shrink)

Can a soldier be held responsible for fighting in a war that is illegal or unjust? The chapters in the book both challenge and defend many deeply held assumptions: about the liability of soldiers for crimes of aggression, about the nature and justifiability of terrorism, about the relationship between law and morality.

Traditional just war doctrine holds that political leaders are morally responsible for the decision to initiate war, while individual soldiers should be judged solely by their conduct in war. According to this view, soldiers fighting in an unjust war of aggression and soldiers on the opposing side seeking to defend their country are morally equal as long as each obeys the rules of combat. Revisionist scholars, however, maintain that soldiers who fight for an unjust cause bear at least (...) some responsibility for advancing an immoral end, even if they otherwise fight ethically. This article examines the attitudes of the American public regarding the moral equality of combatants. Utilizing an original survey experiment, we find that the public's moral reasoning is generally more consistent with that of the revisionists than with traditional just war theory. Americans in our study judged soldiers who participate in unjust wars as less ethical than soldiers in just wars, even when their battlefield conduct is identical, and a large proportion supported harsh punishments for soldiers simply for participating in unjust wars. We also find, however, that much of the American public is willing to extend the moral license of just cause significantly further than revisionist scholars advocate: half of the Americans in our survey were willing to allow an unambiguous war crime—a massacre of innocent women and children—to go unpunished when the act was committed by soldiers fighting for a just cause. Our findings suggest that incorporation of revisionist principles into the laws of war would reinforce dangerous moral intuitions encouraging the killing of civilians. (shrink)

Should the recreational use of drugs such as marijuana, cocaine, heroin, and LSD, be prohibited by law? Prohibitionists answer yes. They usually argue that drug use is extremely harmful both to drug users and to society in general, and possibly even immoral, and they believe that these facts provide sufficient reasons for prohibition. Legalizers answer no. They usually give one or more of three arguments: First, some argue that drug use is not as harmful as prohibitionists believe, and even that (...) it is sometimes beneficial. Second, some argue that drug prohibition “does not work”, i.e., is not very successful in preventing drug use and/or has a number of very bad consequences. Lastly, some argue that drug prohibition is unjust or violates rights. I won’t attempt to discuss all these arguments here. Instead, I will focus on what seem to me the three most prominent arguments in the drug legalization debate: first, the argument that drugs should be outlawed because of the harm they cause to drug users; second, the argument that they should be outlawed because they harm people other than the user; and third, the argument that drugs should be legalized because drug prohibition violates rights. I shall focus on the moral/philosophical issues that these [134] arguments raise, rather than medical or sociological issues. I shall show that the two arguments for prohibition fail, while the third argument, for legalization, succeeds. (shrink)

This article argues against Anna Stilz's recent attempt to solve the problem of citizens' collective responsibility in democratic states. I show that her solution could only apply to state actions that are (in legal terminology) unjustified but excusable. Stilz's marquee case – the 2003 invasion of Iraq – does not, I will argue, fit this bill; nor, in all likelihood, does any other case in recorded history. Thus, this article concludes, we may allow that Stilz's argument offers a theoretically cogent (...) case for citizens' task-responsibility in democratic states (given the right conditions); it just so happens that few if any cases satisfy these conditions. (shrink)

There is an ongoing debate within the law of unjust enrichment whether the victim of a pickpocket has, in addition to a claim in tort against the thief, one in unjust enrichment. Those who argue that he does say that it follows a fortiori from the availability of claims in unjust enrichment for mistake. If the law gives a claim where the transferor's consent to the transfer was merely vitiated, as it does in cases of mistake, so (...) too should it do so where he was ignorant, giving no consent whatever to the ‘transfer’. This idea is used by the protagonists of ignorance as the basis of an explanation of a number of controversial cases, especially Lipkin Gorman v Karpnale and Foskett v McKeown, as belonging within unjust enrichment. This article questions whether the argument is correct. Differently to the case of a mistaken transfer, where the claimant's title passes to the defendant, the pickpocket victim's title stays put. That would seem to be fatal to any unjust enrichment analysis, for an essential element of such a claim, an enrichment at the claimant's expense, now appears to be missing. The question then is whether that objection can be overcome. Various strategies have been proposed, that the law looks to ‘factual’ rather than ‘technical’ enrichments, that title can be electively transferred by the victim to the thief and that title can simply be renounced. None of these strategies work, however, with the consequence that any claim by a victim against his thief can only be in tort, not unjust enrichment. (shrink)

The interdisciplinary series "Law & Literature" takes a systematic look at the correlation between literature and the law. The studies presented in this series analyze the complex interrelation between two cultural spheres which are not only at the basis of Western Culture and Society, but share in a common focus on texts. Bringing together contributions by jurists, historians of law, legal philosophers, and specialists in literary and cultural studies, this series reflects a trend in current inter- and transdisciplinary research which (...) has recently shown rapid growth both in Europe and the United States. (shrink)

That there exists a law of restitution concerned with reversing unjust enrichments is widely considered to be uncontroversial. However, the once orthodox view that unjust enrichment explains all instances of restitutionary liability is fast becoming a minority position. Indeed, the ability of ‘unjust enrichment’ to account for all restitutionary claims has been doubted by many of those who fought most strongly for its recognition as an independent head or source of liability, chief amongst these Professor Peter Birks. (...) Because of this, while there is widespread acceptance that unjust enrichment plays some role within the law of restitution, there is considerable uncertainty as to what this exact role is, so much so that what is meant by unjust enrichment can be seen to be in doubt. Beginning with an examination of Birks’ understanding of unjust enrichment and the classificatory scheme into which it slots, this article addresses the question of what role a conception of unjust enrichment can and should play in presenting and justifying the law of restitution. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Just and Unjust Peace: An Ethic of Political Reconciliation by Daniel PhilpottGlen StassenJust and Unjust Peace: An Ethic of Political Reconciliation Daniel Philpott New York: Oxford University Press, 2012. 365pp. $29.95Just and Unjust Peace deals with an important question: What does a holistic framework of justice consist of in the wake of its massive despoliation? The wounds of political injustice include the following: violation of (...) the victim’s human rights, harms to the victim’s person, the victim’s ignorance of the source and circumstances of political injustices, the lack of acknowledgment of the suffering, the standing victory of the wrongdoer’s political injustice, and harm to the person of the wrongdoer. In such situations, Philpott argues, “what the government and community withhold is... an acknowledgment not only that a victim has rights but also that his rights were violated and that he suffered because of this violation” (37).The definition of justice in this context of wounds is reconciliation. It “encompasses peace settlements, human rights, democracy, and other key goals of negative and positive peace [as well as]... a broad restoration of right relationship involving a multiplicity of practices that each redress wounds of injustice in a particular way” (48–49).Daniel Philpott affirms peace as human rights, equality, and the rule of law, plus actors and institutions like the United Nations that spread this justice. He presents a fair summary of contending positions on human rights and works to develop overlapping agreement. “What is most essential to right relationship in the political order is human rights, their popular legitimacy, and their corresponding virtues” (55). But also, “It is in redressing wrong conduct—the other dimension of justice—that political reconciliation becomes far more distinctive” (55). This requires a deeper understanding of just peacemaking with restorative justice based in Judaism, Christianity, and Islam, and in insightful assessment of the burgeoning practices of truth commissions and restorative justice in the transitions from dictatorship to democracy.Philpott’s “rooted reason” invites different religions to speak from their depths but also encourages them to speak with reasons that can convince in public discourse (18, 20). Envisioning the incorporation of reconciliation into the modern state “is the life’s work of Rabbi Marc Gopin. In today’s Middle East, [End Page 211] Gopin argues, Jews as well as Christians and Muslims cannot afford to ignore the peacebuilding potential of traditional religious concepts” (132). Philpott also exhibits sensitive understanding of Islam, asking, “Do Islamic texts and traditions contain the materials for the construction of the ethic of political reconciliation that I am proposing? Can Muslims, on the basis of their religious convictions, join in an overlapping consensus on such an ethic?” His answer is a clear yes (153).He identifies and assesses six practices of a politics of reconciliation. The first involves building socially just institutions and relations between states: “Since 1974, some ninety societies... have sought to replace dictatorships with democracies.... A similarly intense global wave of peace operations sponsored by the United Nations... has sought to foster human rights and democratic institutions in states that have seen civil war” (175–76). The second has to do with the practices of political acknowledgment of wrongs: “Human rights are the standard that gives truth commissions and other public forms of acknowledgment form and direction” (188). The third pertains to reparations, with attention to the ongoing effects of historical injustices for descendants (195 and 201). The fourth addresses judicial punishment: “In practicing judicial punishment, a state redresses the violation of the victim’s rights insofar as it expresses, reaffirms, and thereby strengthens human rights as the legally valid values of its realm or of relations between it and another state” (237). The fifth is apology: “Like all of the other practices, apologies performed in political contexts have grown in frequency” (198). Finally, there is forgiveness. “Political injustices harm victims by robbing them of their agency and of their ability to pursue their own and others’ flourishing.... Forgiveness... re-empowers the victim as agent... [and liberates] from anger and resentment” and can also lead to recognition of the victim’s suffering, and to mutual respect for human rights (266–68... (shrink)

What are laws? -- What is justice? -- Law and justice -- Types of justice -- Justice and human rights -- Deciding what is just -- Unjust laws in the past -- Injustice aroud the world -- Justice today -- Class discussions.

This book describes a political theology which provides a mode of engagement with unjust laws. It argues that the theology of Francisco Suárez, SJ, an early modern legal theorist and theologian, which was developed to combat an authoritarian view of law, may be successfully retrieved to provide a constructive model of legal engagement for Christians today, including the possibility that communities may work to change law from the ground up as they function within the legal system, not just (...) outside it. His theory of law thus provides a theologically robust way to mount a counter-narrative to contemporary authoritarian theories of law, while still acknowledging the good in the rule of law and its imposition by a legislative authority. He acknowledges the crucial contribution of citizens to improving law's moral content, without removing the importance of law's own authority or the role of the lawgiver. (shrink)