What is the most important under-studied issue in the philosophy of criminal law? What is the vantage point from which the criminal law is best understood? Is it history? The administrative state? Political authority? The justification of punishment? Probably the most understudied issue in the philosophy of criminal law is whether there can be a rational solution to that debate or whether we must resign ourselves to a perpetual quarrel among perspectives.
Can you tell us a bit about your current research? Can you tell us about the book you are working on now? It argues among other things that, from a non-individualistic starting-point, Hegel unlike social contract thinkers who proceed from the individual and invariably end up with some form of authoritarian state demonstrates the human potential for a state that perfects liberalism, democracy, and the rule of law. How have you incorporated his work into your scholarship?
I became interested in Hegel during my M. I tried reading the Phenomenology of Spirit for an essay on Freud I was writing. I understood only the copyright page, but for some uncanny reason, I knew I would spend the rest of my life studying this book. What do you mean when you refer to the unity of the common law The Unity of the Common Law , and ? I mean two things. One, each branch of transactional law exhibits the same architectural harmony: a unity of distinct paradigms connecting justice between insular persons and justice among common subjects of law.
Two, one continuous narrative about the fulfillment of freedom connects the branches of transactional law to each other—from first possession all the way to social insurance against accidents. You have written on both public and private law theory. Can you tell us a bit about how you understand the connection between those two domains, and how your work in one area has helped to develop your work in the other?
Their relationship is thus one of mutual complementarity toward the end of reconciling human independence with human interdependence. What made you want to become a philosopher? Did you always know that you wanted to study the philosophy of law, or was there another area that piqued your interest?
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I found my way into philosophy more or less by accident. I spent a gap year after high school travelling in Asia, and in March of that year, I was in Nepal, and wrote to my brother suggesting that he should sign me up for University. On his way to do so, he ran into a friend of mine, who suggested that I would really love a certain philosophy course. The most economical way to put me in it was to replace Physics with it — only one letter on the form. My interest in legal philosophy came much later.
When I first started at the University of Toronto, I joined a legal philosophy discussion group, organized by Ernie Weinrib. At first it seemed like the kind of topic where, as Jerry Fodor put it in the preface to his book Representations , a properly trained philosopher could sort it all out in a couple of hours.
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Sometime later I had a couple of hours to spare, and have been working on it ever since. My dissertation supervisor, John Haugeland, was a huge influence on me. He really shaped my conception of what counts as a philosophical problem, and drilled into me a commitment to intellectual clarity, and to making philosophical ideas accessible. I think he partly regretted one way in which he influenced me: the day that my dissertation topic was approved, he took me to lunch, and cautioned that my dissertation was the last thing that I did as a graduate student, not the first thing I did in my career.
I wrote my dissertation in the philosophy of mind, and never did anything else in the area. To his dying day, John marvelled at the extent to which I took him at his word. Can you recommend five books that you think are essential reading in the philosophy of law? I am currently working on a book developing a Kantian account of the law and morality of war. I write for different audiences at different times, hoping to generate as much overlap as possible. Some of my writing on Kant seeks attention from legal and political philosophers and Kant scholars; my writing in torts aims to be accessible to legal philosophers and scholars of private law.
Can you tell us about your theory of private wrongs, from your recent book on the topic Private Wrongs , ? How does that relate to your prior book Force and Freedom , ? A proper understanding of private rights governing relations between individuals is fundamental to the Kantian understanding of political philosophy. Private Wrongs seeks to provide an articulation of that in the special case of tort law. Who have been your most important interlocutors at the Faculty of Law? Who are your most important interlocutors outside the Faculty of Law? I am extremely fortunate to have a large group of colleagues working in legal philosophy in general, and philosophical issues in private law in particular.
Why should someone interested in law and philosophy study at the University of Toronto Faculty of Law? What sets it apart? The best reason to study legal philosophy at the University of Toronto is the way in which the scholars working on it here integrated with doctrinal issues in the law. Law is very unusual among academic disciplines in that someone can spend a successful career working on topics that are mostly found within the first-year curriculum, and, the first year curriculum opens out onto all of the deepest questions of legal thought.
Toronto is unusual, in that legal philosophy is not treated as a subject that exists apart from the main thrust of legal education, either, as in the case of some institutions, through a sort of marginalization in favour of economic and social science approaches to the law or, in other places, through a self-isolation undertaken by scholars who think that "legal philosophy proper" need not attend to any doctrinal structures of the law.
I have some interest in questions about defensive force. In the past I have examined its role in the criminal law, and then in my current project I look at defensive war. I am particularly interested in the ways in which protective force of these kinds differs from the sort of remedial force involved in a court ordering damages, as well as from the sort of punitive force that accompanies criminal punishment.
I think that both philosophers and legal scholars in the 20th century tended to treat criminal wrongdoing as the basic form of wrongdoing, leading to significant misunderstandings of the nature of both remedies and defensive force. You did your philosophy PhD before your JD.
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Did you always plan to go into law? Would you recommend that path to someone interested in legal academia? That seems to me to be true today, as well. The path to becoming an academic is long, uncertain and filled with random contingencies of all kinds, so I think you need to be able to live with that. One of my classmates who is currently in 2L took criminal law in their first year with you. They commended your approach to teaching about sexual assault. How do you approach the subject?
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Sexual assault is one of the trickiest parts of the criminal law curriculum, and tends to give rise — understandably — to rather intense emotions. In a large class, you can pretty much be assured that there are people in the room who have experienced sexual assault in one way or another. I do think there are some important tensions in the law in this area, and I try to encourage students to think about how some of the principles that may seem appealing elsewhere in the criminal law become more problematic when applied to sexual assault. What is your favourite Canadian criminal law case?
I also quite like Hare v Hare , a somewhat obscure limitations case, and for the opposite reason. It feels like actual law, rather than just some more navel gazing by a bunch of judges.
Can you tell us about your new book on criminal law and the administrative state? Asking an academic to explain his or her work is a decision that one frequently has cause to regret… I will try to be brief. The book starts by looking at how criminal law gradually became public law over the 18th and 19th centuries, and suggests that the kinds of political values we are inclined to apply to other public institutions the tax code, the health care system, the labor market, etc.
These are values like democratic control, equality and fair distribution. Most legal theorists of the last generation have tended, instead, to think of the criminal law as the manifestation of a special type of justice — retributive justice. Consequently, they tend to think of the morality of the criminal law as akin to the morality of punishment in private, interpersonal contexts: did he deserve it?
Was what he did morally wrong?