This essay develops a liberal account of the mens rea requirement of criminal liability and identifies the fault level required by that account. By “a liberal account” is meant one that interprets the meaning of mens rea in a way that reconciles liability to coercion with the individual's inviolability. The article argues that the wrongdoer's choice to interfere or to risk interfering with another agent's capacity to act on his own ends is the level of fault required to make punishment (...) implicitly self-imposed by the recipient and thus distinguishable from the wrongdoer's violence. Such a choice is one to which a denial of rights of agency may be logically imputed, a denial by which the wrongdoer implicitly authorizes his own coercibility. This version of subjectivism is, I argue, invulnerable against criticisms leveled against other versions. While staking out defensible subjectivist ground, the article criticizes the character, choice, and opportunity theories of mens rea proposed by Fletcher, Moore, and Hart, and elaborates the interpretations of exculpatory conditions flowing from the subjectivist thesis. Finally, it addresses arguments advanced by Ripstein, Duff, and Horder for eliminating the requirement of a conscious choice to do that which amounts to a denial of rights. (shrink)

Punishment -- Culpable mind -- Culpable action -- Responsibility for harm -- Liability for public welfare offences -- Justification -- Excuse -- Detention after acquittal -- The unity of the penal law.

A fully revised edition of Brudner's classic account of the foundational structures and rationale of private law. Brudner proposes a radical unification of formalist and functionalist understandings of the law. In doing so, he rethinks the foundations of tort, contract, property and unjust enrichment as a unity of private and public law.

The book provides a novel theory of the criminal law that focuses, not on when it is appropriate to blame and make suffer an individual character, but on when it is legitimate to deprive a free agent of its liberty and on how it is possible to reconcile punishment with individual freedom.

This chapter contains sections titled: Introduction The Ideal Form of Mutual Recognition Hegel's State of Nature De Facto Authority De Jure Authority Legitimate Authority Constitutional Authority Conclusion Notes References.

¿Qué es lo que tienen de especial ciertas libertades para merecer protección constitucional frente a la regulación legal? ¿En qué se diferencian las llamadas libertades básicas de la libertad general cuya regulación por el Estado da lugar a un escrutinio de los tribunales para un propósito público válido ejercido con cierta indiferencia? ¿Qué nos enseña la especial naturaleza de las libertades básicas sobre el tipo de fines que están cualificados para limitarlas y sobre la grado de respeto que todavía les (...) debemos cuando su limitación está justificada? (shrink)

Countering the influential view of Critical Legal Studies that law is an incoherent mixture of conflicting political ideologies, this book forges a new paradigm for understanding the common law as being unified and systematic. Alan Brudner applies Hegel's legal and moral philosophy to fashion a comprehensive synthesis of the common law of property, contract, tort, and crime. At a time when there is a strong tendency among scholars to view the common law as essentially fragmentary, inconsistent, and contradictory, (...) Brudner suggests instead a coherence that synthesizes several interrelated dichotomies: good-centered and right-based legal paradigms, instrumental and non-instrumental conceptions of law, externalist and internalist interpretations of the common law system, and communitarian and individualist attempts to found the legal enterprise. Brudner covers genuinely new ground through an interpretation of the common law from the standpoint of Hegelian legal philosophy. His unifying notion of common law corresponds to Hegel's notion of Geist, suggesting a designation of the mutual dependence of the community and the atomistic self for their confirmation as ends. (shrink)

This book aims to distil the essentials of liberal constitutionalism from the jurisprudence and practice of contemporary liberal-democratic states. It argues that the model liberal-democratic constitution is best understood as a unity of three constitutional frameworks: libertarian, egalitarian, and communitarian. When viewed in this light, the liberal constitution embodies a surprising synthesis. It reconciles a commitment to individual liberty and freedom of conscience with the perfectionist idea that the state ought to cultivate a type of personality whose fundamental ends are (...) the goods essential to dignity. (shrink)

Constitutional Goods de Alan Brudner es un documentado estudio de teoría constitucional que aspira a elaborar el modelo de constitución ideal para el liberalismo político capaz de suscitar la adhesión de las diversas escuelas y tradiciones filosófico-políticas que debaten a propósito del sentido de la razón pública en las democracias constitucionales o los principios básicos que deberían de inspirar la acción de sus gobiernos. Brudner intenta elaborar un modelo de razón pública que suscite un consenso convergente de (...) esas escuelas (liberalismo clásico, igualitarismo, formas liberales del comunitarismo, etcétera), esto es, un tipo de consenso al que, a diferencia del consenso superpuesto de Rawls, se llega a partir de los propios compromisos filosóficos, con lo que no se obliga a velarlos al momento de su elaboración. Para ello mostrará, en un ejercicio de ref inada dialéctica, como las versiones extremas del liberalismo clásico, del igualitarismo o del comunitarismo degeneran en teorías políticas tendencialmente despóticas e incongruentes con sus propios postulados fundamentales. Por ese motivo, todas esas teorías deberían de terminar convergiendo en un modelo de constitución inclusiva elaborada sintéticamente a partir de sus elementos más valiosos. El texto que sigue corresponde al capítulo introductorio de la obra y en él se dan detalles del método de criba de los principios ideales del liberalismo político, de las distintas teorías llamadas a participar en la construcción de la constitución liberal ideal y de otros aspectos relevantes del conjunto de la obra. (shrink)

Taking religious freedom as illustrative, this essay proposes a theory of the basic freedoms that pacifies the conflict among libertarian, egalitarian, and communitarian sects of liberalism. This theory follows John Rawls’s suggestion that constitutional courts are exemplars of public reason but rejects his partisan construal of public reason in terms that only an egalitarian liberal would recognize. If, as Rawls argues, liberal pluralism is reasonable and if constitutional courts are guardians of public reason, then an ideal constitutional court will guide (...) itself by the theory of the basic freedoms that reconciles liberal pluralism with the rule of public reason. Such a theory will integrate the plurality of liberal sects into an inclusive liberalism that preserves a distinctive role for each in defining and limiting constitutional rights, while refining them of the errors resulting from their hegemonic ambitions. Liberal pluralism is thus preserved, but liberal fragmentation is overcome. Public reason is sought not through an escape from pluralism but in a logical concord among the denominations of liberalism. The way for courts to execute this concord in constitutional cases is to follow the method of reasoning they have already largely adopted. That method is proportionality review. (shrink)

This essay inquires whether a constitutional state, understood as one ruled not by natural persons but by laws and legal decisions that free persons can endorse, can accommodate the administrative state, understood as one wherein executive agencies exercise law-making, statute-interpreting, and sanction-levying powers. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state – a democratic-republican model and one ordered to an autonomous concept of Law – and compares their abilities to accommodate an executive with (...) a robust law-making and statute-interpreting authority. The essay concludes that, whereas the democratic-republican model is hostile to the administrative state, the Law-centred model is at ease with it and allows it to flourish within bounds. The Law-centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power that state needs to fulfil its positive obligations to its citizens. (shrink)

Since 1945, there have been two waves of Anglo-American writing on Hegel's political thought. The first defended it against works portraying Hegel as an apologist of Prussian reaction and a theorist of totalitarian nationalism. The second presented Hegel as a civic humanist critic of liberalism in the tradition of Rousseau. The first suppressed elements of Hegel's thought that challenge liberalism's individualistic premises; the second downplayed Hegel's theism. This book recovers what was lost in each wave. It restores aspects of Hegel's (...) political thought unsettling to liberal beliefs, yet that lead to a state more liberal than Locke's and Kant's, which retain authoritarian elements. It also scrutinizes Hegel's claim to have justified theism to rational insight, hence to have made it conformable to Enlightenment standards of admissible public discourse. And it seeks to show how, for Hegel, the wholeness unique to divinity is realizable among humans without concession or compromise and what role philosophy must play in its final achievement. Lastly, we are shown what form Hegel's philosophy can take in a world not yet prepared for his science. Here is Hegel's political thought undistorted. (shrink)

In this article, the author replies to critiques of his book, Constitutional Goods by Professors Trevor Allan, Clare Chambers, John Charvet, Philip Cook, Thomas Poole, and Lorenzo Zucca. These critiques were originally presented at a symposium held in May, 2008 at the London School of Economics and Political Science and were later published together in Vol. XXII Canadian Journal of Law and Jurisprudence.

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty (...) theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer. (shrink)

This essay applies Hegel's theory of remedies to the question of whether and when breach of a penal statute should attract civil liability in tort. For Hegel, the purpose of a remedy is to vindicate the human right to self-determination by refuting the claim to validity implied in intentional or negligent acts that infringe this right. Accordingly, in determining the civil effect of legislation, a distinction must be made between statutes that effectuate pre-existing rights and those which create new rights (...) in the attempt to maximize aggregate welfare. The former should confer a civil right of action, the latter should not. Statutes that impose a duty of affirmative action should be enforced civilly if their purpose is to protect individual autonomy in circumstances where one person has gained control over the welfare of another. And statutes that protect persons from exposure to unreasonable risk should confer a civil right of action provided that the conditions of ordinary negligence liability are met. These conditions ought to supplant those connected with the legislative intent theory of statutory torts. (shrink)

‘The several modes of feeling, perception, desire, and will, so far as we are aware of them, are in general called ideas (mental representations) and it may be roughly said that philosophy puts thoughts, categories, or, in more precise language, adequate notions, in the place of generalized images we ordinarily call ideas. Mental impressions such as these may be regarded as the metaphors of thoughts and notions. But to have these figurate conceptions does not imply that we appreciate their intellectual (...) significance, the thoughts and rational notions to which they correspond. Conversely, it is one thing to have thoughts and intelligent notions, and another to know what impressions, perceptions, and feelings correspond to them’.1. (shrink)

A Hegelian Liberal Theory of the Penal Law Content Type Journal Article Category Book Review Pages 219-224 DOI 10.1007/s11572-011-9119-8 Authors Alfonso Donoso, Pontificia Universidad Cat’olica de Chile, ICP, Santiago, Chile Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791 Journal Volume Volume 5 Journal Issue Volume 5, Number 2.

In "Constitutional Goods" Alan Brudner presents novel conception of justice that will inform the content of the ideal liberal constitution. The content of this novel conception of justice is constituted by what Brudner describes as an inclusive conception of liberalism, and its justification is grounded on an account of public reason that is presented in opposition to that of John Rawls. I argue that we should reject both the content and justification of Brudner's conception ofjustice. (...) class='Hi'>Brudner is unable to construct an inclusive conception of liberalism from elements of libertarianism, egalitarianism, and communitarianism, and his account of public reason lacks the properties of fairness and reciprocity that differentiate a reasonable agreement from a modus vivendi. This paper therefore defends a Rawlsian political conception ofjustice and justification from Brudner's criticisms and proposed alternatives. (shrink)

The authors develop an axiomatic theory of nonexistent objects and and give a formal semantics for the language of the theory.

In notes to Hegel's Rechtsphilosophie lectures, written around the time of Haiti's 1825 ‘ransom’—the 150 million francs demanded by France to indemnify former slave and plantation owners—we find an uncanny remark. Hegel appears to report on a different ransom, a compensated abolition of slavery in North America that never happened, anticipating an application of the Fifth Amendment's takings clause that US legal scholarship routinely fails to mention. In view of Alan Brudner's enlistment of Hegel as the philosopher ‘uniquely’ (...) able to understand the Fifth Amendment's requirement for compensation for expropriations—a ‘constitutional essential for liberalism’—this paper explores the meaning of these passages in the historical context of the legal abolitions of Hegel's time: feudalism and slavery. The slaveholder indemnities were clearly the unjust ‘dividends’ of the colour line, but their legal foundations and developments in US thought of the nineteenth century also usefully illustrate takings law's foreclosure of political and social transformation through the securitization of value. Reading these histories and Hegel's comments alongside the critical interventions of the black radical tradition, I suggest that Hegel's curious remarks on compensated takings suggest not only a critical divergence from Brudner's understanding of ‘dialogic community’, but a crucial limitation in his field of analysis which pivoted on the denigration of black sovereignty. This paper thus suggests an understanding of US takings law through the shifting understandings of the term ‘ransom’—which for abolitionists such as Frederick Douglass signified not a resolution of slavery, but rather the threat of its perpetuation—and Douglass's elaboration of the pathology of the colour line. (shrink)

The phenomenon of rigid designation - in particular, de jure rigidity - is typically treated metaphysically. The picture is: reference is gained in a way that puts no constraints on what an object in other worlds, or counterfactual situations must be like, in order to be the referent of that term, other than 'being this thing'. This allows 'pure metaphysical' investigation into, and discovery of 'the nature' of the referent. It is argued that this presupposes a 'privileged' ontology, of a (...) sort that is far from obvious. An alternative picture of rigidity is sketched, terms have associated criteria of identity and criteria of application for counterfactual situations. A term is rigid when these coincide. Aside from being a better account of rigidity, it also undermines the picture of rigid terms allowing us to 'metaphysically' investigate the nature of the referent: matters of identity and essence for the referent are settled by these semantic constraints (though it can be done in a way that allows are a posteriori necessities). (shrink)

A collection of essays (1971-1999) centering on the philosophy of science. Musgrave, a philosopher whose academic affiliations are not given, defends realism, partly from an appeal to common sense. He discusses anti-realist trends in Anglo-American philosophy (Wittgenstein, instrumentalism, construc.

This paper starts by discussing Alan Brudner's overall project: the project of inclusivity. It argues that the idea of inclusivity is problematic both conceptually and normatively, for three reasons. First, it is not clear that Brudner's aim to provide a unified theory of the liberal constitution is either possible or desirable. Second, Brudner assumes but does not adequately demonstrate the need for public justification of the liberal constitution. Third, Brudner does not sufficiently explain who should (...) have a veto over his final theory. The paper then turns to Brudner's analysis of sex and family, and argues that his position on these matters is one that liberals would reject. In the case of marriage, Brudner’s conclusions may be compatible with liberalism but the arguments supporting them are not. In the case of abortion, neither argument nor policy is compatible with liberalism. Either his position requires that we attribute differential status to human persons, in direct contravention of the fundamental equality of moral worth that liberalism accords to all individuals. Or it requires that we override the rights of individuals by asserting that their own self-authorship is less important to them than a symbol of their personal relationship, a judgment that profoundly undermines individual autonomy. (shrink)

Published in 1821, Outlines of the Philosophy of Right is considered the definitive articulation of the legal, moral, social, and political philosophy of G.W.F. Hegel. However, shortly before its publication, Hegel delivered a series of lectures on the subject matter of the work at the University of Berlin. These lectures are unlike any others Hegel gave on the philosophy of Right in that they do not supplement a published text but rather give a full and independent presentation of his mature (...) political thought. Yet, they are also unlike Hegel's formal treatise in that they form a smooth and flowing discourse, much like Hegel's lectures on the philosophy of history, philosophy of art, philosophy of religion, and history of philosophy. Substantively, these lectures contain more extensive discussions of poverty and the proletariat than are found in Hegel's published text--discussions that carry out the retreat from optimism about the present age intimated in the preface to Outlines but nowhere evident in the text itself. Translated with an introduction and notes by Alan Brudner, Hegel's 1819/20 lectures on the philosophy of Right present his complete thoughts on law and the state in a manner that is more accessible and engaging than any other Hegelian text on these subjects. (shrink)

The prospect for widespread therapeutic use of human fetal tissues has aroused strong emotions and prompted several objections. Fetal tissue transplantation circumscribed by medical and moral limits will not erode important ethical values, but the pace of scientific research must not preempt public debate and a verdict consistent with societal values.