ARTICLES AND CHAPTERS
'The Rule of Law and the Limits of Anarchy,' Legal Theory, forthcoming.
Abstract: Anarchy is often contrasted with law, order, or security. Most social contract theorists justify the state as an alternative to a state of nature in which individuals enjoy little or no protection from law. But anarchist societies, by which I mean societies which lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems which regulate the behaviour of their members and protect their rights. I will show that insofar these models rely on consent, they all share similar structural flaws, namely that they cannot meet basic rule of law values such as equality before the law and access to legal remedies for wrongs, or that to the extent that they do, they cease to function as anarchist legal systems. Consensual legal systems cannot enjoy the uniformity and consistency necessary to embody and respect individual moral equality, even minimally conceived. The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state based or not, must have a strong non-consensual, coercive element: the process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice. This finding invites us to re-evaluate our concept of law and consider more carefully which features are necessary for functioning, just legal orders.
'Hume's Dynamic Coordination and International Law,' Political Theory, forthcoming (online first).
Abstract: At the heart of the tension between state autonomy and international law is the question of whether states should willingly restrict their freedom of action for the sake of international security, human rights, trade, communication, and the environment. David Hume offers surprising insights to answer this question. He argues that the same interests in cooperation arise among individuals as well as states and that their interactions should be regulated by the same principles. Drawing on his model of dynamic coordination, I will reconstruct the Humean case for developing international law into a more robust legal system and also highlight the limitation of Hume’s account of justice for such a reconstructive project. Hume’s lessons are enduring; we must strengthen the essential features of international law that allow states and individuals to reap the benefits of its protections, such as nonoptional rules that articulate a moral minimum, courts with compulsory jurisdiction, and stronger mechanisms of enforcement.
'Global and National Constitutionalism,’ Cambridge Handbook of Constitutional Theory, Richard Bellamy and Jeff King, eds., forthcoming.
‘Constitutionalism and Pluralism: Two Models of International Law,’ Routledge Handbook of the Rule of Law, Michael Sevel ed., forthcoming.
'The International Rule of Law,' Critical Review of International Social and Political Philosophy, 23:3, 2020.
Abstract: There is wide agreement that the decentralized and consensual nature of international law, and the paucity of dispute resolution forums and of administrative and enforcement organs means that domestic rule of law requirements cannot be simply transplanted to the international realm. For example, it is more difficult to identify the public officials in international law whose arbitrary power must be restrained. The requirements of an international rule of law must be interpreted and specified for the very different context of international law. I argue that one of the main goals of an international rule of the law is the protection of individual and state autonomy from the arbitrary interference of international institutions and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy form the encroachment of international law will have to be constrained by, and balanced against, the more fundamental goal of an international rule of law, the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.
'Healthcare: Between a Human and a Conventional Right,' Economics and Philosophy, 35:3, 2019.
Abstract: One of the most prevalent rationales for public healthcare policies is a human right to healthcare. Governments are the typical duty bearers, but they differ vastly in their capacity to help those vulnerable to serious health problems and those with severe disabilities. A right to healthcare is out of the reach of many developing economies that struggle to provide the most basic services to their citizens. If human rights to provision of such goods exist, then governments would be violating rights without doing anything wrong. I argue that such variable ability to provide healthcare depends not only on financial resources, but on institutional capacity, and that the latter represents a more fundamental challenge to the existence of a human right to healthcare than previously recognized. This challenge does not imply that government has no obligations to protect and improve the health of their citizens, but that it is best to think of such obligations as generated by conventional rights, namely rights arising from local legal and social conventions, which require governments to pursue health-related moral goals such as reducing suffering, closing opportunity gaps for the disadvantaged, and preventing the spread of contagious diseases. We need not think of such moral goals in terms of human rights.
'International Law as a Hartian Legal System?' Ratio Juris, 31:3, 2018.
Abstract: H.L.A. Hart proposed one of the most influential accounts of law, according to which law is a union of primary rules, which guide the behavior of the law’s subjects, and secondary rules, which guide officials in recognizing, changing and interpreting primary rules. Writing at the end of the 1950s, Hart had serious doubts that international law meets the necessary criteria for a legal system. But there are several reasons to reconsider his position. One is that international law has undertaken a tremendous amount of growth and change since the 1950s. Second, Hart himself may have been less than judicious in applying his own criteria to international law, or so I will argue. In particular, by denying the existence of an international rule of recognition, he may have mischaracterized the nature of an international legal order in which such a rule was already operating at the time his view was taking shape.
'Skeptical Challenges to International Law' (with David Lefkowitz) Philosophy Compass, 13:8, 2018.
Abstract: International and domestic law offer a study in contrasts: states' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent, enforcement in international law is weak, and for many international treaties non-existent, while states spend considerable resources to create centralized coercive enforcement mechanisms, and international law is characterized by much less institutional differentiation and specialization of functions that domestic legal systems are. These differences have invited a number of skeptical challenges to international law, three of which we explore in this essay. The first points to one or more of the deviations of international law’s institutional structure from that of a modern state’s legal system as a basis for denying that international law is really ‘law.’ Central to the debates over international law’s status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general, and international law in particular.
The second skeptical challenge targets international law’s legitimacy. It claims that we lack reasons to treat international legal norms, or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy.
The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states’ political self-determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation.
'Boundaries, Subjection to Laws and Affected Interests,' Oxford Handbook of Freedom, (Oxford University Press, 2018).
Abstract: Political decisions in one country can have negative effects in other countries. The defenders of the “all affected interests principle” (AAIP) propose that political decisions should be made by those whose interests are likely to be affected by them. AAIP purports to offer normative criteria for drawing boundaries around political communities in less arbitrary and more morally legitimate ways, by ultimately endorsing a global democracy as the only legitimate form of political rule. This chapter offers an alternative explanation for (1) why certain people should be included in the political decision-making of a group and others should not, that better captures the reasons for extending the democratic franchise, and (2) how to take the idea of affected interests into account. This alternative, called the “all subjected” principle, shares the concern about the shortcomings of existing modes of political organization, but has different implications for political practice.
'A Legal Conventionalist Approach to Pollution,' Law and Philosophy, 35:4, 2016.
Abstract: There are no moral entitlements with respect to pollution prior to legal conventions that establish them, or so I will argue. While some moral entitlements precede legal conventions, pollution is part of a category of harms against interests that stands apart in this regard. More specifically, pollution is a problematic type of harm that creates liability only under certain conditions. Human interactions lead to harm and to the invasion of others’ space regularly, and therefore we need an account of undue harm as a basis of assigning legal protections (rights) and obligations (duties) to different agents, which creates standards for holding those agents responsible for harm. Absent such positive standards with respect to pollution at the domestic or international level, it does not make sense to hold agents responsible. This fact has two fundamental implications. First, contrary to what some defenders of environmental justice argue, we cannot hold people responsible for polluting without a system of legal rights in place that assigns entitlements, protections, and obligations, and second, contrary to what opponents of environmental regulation claim, the lack of moral entitlements to pollute creates room for quite extensive legal restrictions on people’s ability to pollute for the sake of the environment and human health. Indeed the scope of those restrictions is wide and open-ended.
'Negative Duties, The WTO and the Harm Argument,' Political Studies, 63:2, 2015.
Abstract: Citizens in rich countries should shoulder the burden of alleviating global poverty because they are harming the poor, or so many argue. But the baseline for assessing harm is often unclear. This paper recommends a baseline for harm as rights violations. This baseline makes it clear that many of the attributions of harm made by proponents of the harm argument, instead of representing cases of harms caused, are rather instances of benefits withheld from the poor. A moral case can be made that benefits should be extended by the rich countries toward poor ones, but this case will look very different from a case for responsibility for harm.