Marie Newhouse | University of Surrey (original) (raw)
Papers by Marie Newhouse
Kantian Review
This article develops an account of the nature and limits of the state’s legislative authority th... more This article develops an account of the nature and limits of the state’s legislative authority that closely attends to the challenge of harmonizing Kant’s ethical and juridical theories. It clarifies some key Kantian concepts and terms, then explains the way in which the state’s three interlocking authorities – legislative, executive, and judicial – are metaphysically distinct and mutually dependent. It describes the emergence of the Kantian state and identifies the preconditions of its authority. Then it offers a metaphysical model of the Kantian state and uses it to argue that the activity of juridical lawgiving is an act of the omnilateral will itself. Legislative authority is limited in the sense that it does not include the capacity to create juridical laws that are conceptually incompatible with the idea of universal external freedom. I argue that my proposed account of the legislative authority is wholly consistent with that authority’s exclusive lawgiving capacity and does n...
In Kant’s moral and political writings, laws of freedom are called moral laws. There are two type... more In Kant’s moral and political writings, laws of freedom are called moral laws. There are two types of moral law. As directed merely to external actions and their conformity to law they are juridical laws; but if they also require that they (the laws) themselves be the determining grounds of actions, they are ethical laws’ (6:214).ii Kant also writes: ‘For us, whose choice is sensibly affected and so does not of itself conform to the pure will but often opposes it, moral laws are imperatives (commands or prohibitions) and indeed categorical (unconditional) imperatives’ (6:221). I understand Kant to mean that moral laws are, by definition, unconditional practical laws, which are therefore categorical imperatives for imperfectly rational beings like us.iii This raises a very broad question: how it can be the case that a juridical law is a categorical imperative? Most of this chapter will focus on a somewhat narrower question: how can a statute passed by a legislative body generate an u...
This dissertation develops a Kantian philosophical framework for understanding our individual obl... more This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant's Universal Principle of Right tracks the two ways--material and formal--in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant's standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the action in question has been prohibited by statute, Kant's legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, a...
SSRN Electronic Journal, 2000
SSRN Electronic Journal, 2000
... September 14 DRAFT DO NOT CITE OR QUOTE WITHOUT PERMISSION 1 Negotiating in the Shadow of ... more ... September 14 DRAFT DO NOT CITE OR QUOTE WITHOUT PERMISSION 1 Negotiating in the Shadow of Bad Faith Refusal to Settle: A Game Theory Model of Medical Malpractice Pre-Trial Settlements and Insurance Limits Theodore H. Frank* Marie Gryphon** Abstract ...
Public Reason 9(1-2), 2017
In A Theory of Justice, Rawls concludes that individuals in the original position would choose to... more In A Theory of Justice, Rawls concludes that individuals in the original position would choose to adopt a system of democratic equality governed by his two principles of justice. However, Rawls mistakenly defines the possibility space within which individuals in his original position must make their choice. An alternative account of the possibility space created by Rawls's original position reveals that a system of liberal equality, according to which distributive shares would be determined by market processes, would be preferred by risk-averse individuals. However, such individuals would guard against the erosion of the social bases of self-respect by including a social safety net among the basic equal liberties secured by Rawls's first principle of justice.
Ruhi Demiray & Alice Pinheiro Walla (eds), Reason, Rights and Law: New Essays on Kantian Philosophy, (University of Wales Press), 2019
Kantian legal philosophers have wondered: how it is that we can be obligated to obey the terms of... more Kantian legal philosophers have wondered: how it is that we can be obligated to obey the terms of a statute passed by a legislative body? Kant claimed that these so-called 'juridical laws' are 'categorical imperatives' - unconditional rational requirements for us. However, Kantians such as Marcus Willaschek have doubted that this is possible. This chapter debuts a Kantian theory of legal obligation according to which juridical laws are categorical imperatives, and it demonstrates that threatened punishments play a critical role in making them so.
This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Rig... more This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Right that tracks the two ways—civil and criminal—in which actions can be legally wrong. This article demonstrates in three ways that the principle is a plausible and resilient account of the essential distinction between civil and criminal wrongdoing. First, the Universal Principle of Right correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, which traditionally is not. Third, it justifies differences between the way in which we determine criminal punishments and the way in which we measure civil remedies. Moreover, as interpreted, the Universal Principle of Right offers a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority.
This article (SMUR) will be published in a revised form in Legal Theory https://www.cambridge.org/core/journals/legal-theory. This version is free to view and download for private research and study only. Not for redistribution , resale or use in derivative works. Copyright Cambridge University Press 2017
This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Rig... more This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Right that tracks the two ways-civil and criminal-in which actions can be legally wrong. This article demonstrates in three ways that the principle is a plausible and resilient account of the essential distinction between civil and criminal wrongdoing. First, the Universal Principle of Right correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, which traditionally is not. Third, it justifies differences between the way in which we determine criminal punishments and the way in which we measure civil remedies. Moreover, as interpreted, the Universal Principle of Right offers a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority.
23 Cornell J.L. & Pub. Policy 553 (2014), May 1, 2014
Dennis F. Thompson developed a theory of “institutional corruption” in order to explain a phenome... more Dennis F. Thompson developed a theory of “institutional corruption” in order to explain a phenomenon that he believed the Congressional ethics rules failed to address: Congress’ systematic deviation from its proper purpose as a consequence—not merely of individual wrongdoing—but of the influence of several general systemic features of the legislative process. Researchers at Harvard University’s Edmond J. Safra Center for Ethics have recently deployed the language of institutional corruption broadly in analyses of various other public and private institutions, such as regulatory agencies, banks, pharmaceutical companies, and think tanks. The states of affairs that researchers have identified as “institutional corruption” fall into four categories: 1) breaches of fiduciary duty, 2) fraud or otherwise unfair commercial practices, 3) destructive firm behavior, and 4) mistake, inefficiency, or incompetence. This Article reveals that only the first of these represents a true application of Dennis F. Thompson’s theory of institutional corruption, which was originally developed in the context of Congressional ethics. Research projects that deploy the terminology of institutional corruption in nonfiduciary contexts are certainly valuable, but they do not address the subject matter of institutional corruption, properly understood.
Harvard Public Law Working Paper
How can we tell right actions from wrong ones? I believe that Kant’s Universal Principle of Right... more How can we tell right actions from wrong ones? I believe that Kant’s Universal Principle of Right establishes a dual standard for the rightness of actions, corresponding to the two distinct types of wrong actions that Kant describes elsewhere: formal wrongs and material wrongs. I will show that my interpretation better accords with Kant’s language than do alternative readings according to which Kant establishes a single standard. More importantly, only a two-standard reading along these lines can account for Kant’s related philosophical commitments concerning the nature of criminal wrongdoing.
7 JL Econ. & Pol'y 717 (2011), May 1, 2011
8 Rutgers J.L. & Pub. Policy 567 (2011)
Kantian Review
This article develops an account of the nature and limits of the state’s legislative authority th... more This article develops an account of the nature and limits of the state’s legislative authority that closely attends to the challenge of harmonizing Kant’s ethical and juridical theories. It clarifies some key Kantian concepts and terms, then explains the way in which the state’s three interlocking authorities – legislative, executive, and judicial – are metaphysically distinct and mutually dependent. It describes the emergence of the Kantian state and identifies the preconditions of its authority. Then it offers a metaphysical model of the Kantian state and uses it to argue that the activity of juridical lawgiving is an act of the omnilateral will itself. Legislative authority is limited in the sense that it does not include the capacity to create juridical laws that are conceptually incompatible with the idea of universal external freedom. I argue that my proposed account of the legislative authority is wholly consistent with that authority’s exclusive lawgiving capacity and does n...
In Kant’s moral and political writings, laws of freedom are called moral laws. There are two type... more In Kant’s moral and political writings, laws of freedom are called moral laws. There are two types of moral law. As directed merely to external actions and their conformity to law they are juridical laws; but if they also require that they (the laws) themselves be the determining grounds of actions, they are ethical laws’ (6:214).ii Kant also writes: ‘For us, whose choice is sensibly affected and so does not of itself conform to the pure will but often opposes it, moral laws are imperatives (commands or prohibitions) and indeed categorical (unconditional) imperatives’ (6:221). I understand Kant to mean that moral laws are, by definition, unconditional practical laws, which are therefore categorical imperatives for imperfectly rational beings like us.iii This raises a very broad question: how it can be the case that a juridical law is a categorical imperative? Most of this chapter will focus on a somewhat narrower question: how can a statute passed by a legislative body generate an u...
This dissertation develops a Kantian philosophical framework for understanding our individual obl... more This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant's Universal Principle of Right tracks the two ways--material and formal--in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant's standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the action in question has been prohibited by statute, Kant's legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, a...
SSRN Electronic Journal, 2000
SSRN Electronic Journal, 2000
... September 14 DRAFT DO NOT CITE OR QUOTE WITHOUT PERMISSION 1 Negotiating in the Shadow of ... more ... September 14 DRAFT DO NOT CITE OR QUOTE WITHOUT PERMISSION 1 Negotiating in the Shadow of Bad Faith Refusal to Settle: A Game Theory Model of Medical Malpractice Pre-Trial Settlements and Insurance Limits Theodore H. Frank* Marie Gryphon** Abstract ...
Public Reason 9(1-2), 2017
In A Theory of Justice, Rawls concludes that individuals in the original position would choose to... more In A Theory of Justice, Rawls concludes that individuals in the original position would choose to adopt a system of democratic equality governed by his two principles of justice. However, Rawls mistakenly defines the possibility space within which individuals in his original position must make their choice. An alternative account of the possibility space created by Rawls's original position reveals that a system of liberal equality, according to which distributive shares would be determined by market processes, would be preferred by risk-averse individuals. However, such individuals would guard against the erosion of the social bases of self-respect by including a social safety net among the basic equal liberties secured by Rawls's first principle of justice.
Ruhi Demiray & Alice Pinheiro Walla (eds), Reason, Rights and Law: New Essays on Kantian Philosophy, (University of Wales Press), 2019
Kantian legal philosophers have wondered: how it is that we can be obligated to obey the terms of... more Kantian legal philosophers have wondered: how it is that we can be obligated to obey the terms of a statute passed by a legislative body? Kant claimed that these so-called 'juridical laws' are 'categorical imperatives' - unconditional rational requirements for us. However, Kantians such as Marcus Willaschek have doubted that this is possible. This chapter debuts a Kantian theory of legal obligation according to which juridical laws are categorical imperatives, and it demonstrates that threatened punishments play a critical role in making them so.
This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Rig... more This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Right that tracks the two ways—civil and criminal—in which actions can be legally wrong. This article demonstrates in three ways that the principle is a plausible and resilient account of the essential distinction between civil and criminal wrongdoing. First, the Universal Principle of Right correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, which traditionally is not. Third, it justifies differences between the way in which we determine criminal punishments and the way in which we measure civil remedies. Moreover, as interpreted, the Universal Principle of Right offers a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority.
This article (SMUR) will be published in a revised form in Legal Theory https://www.cambridge.org/core/journals/legal-theory. This version is free to view and download for private research and study only. Not for redistribution , resale or use in derivative works. Copyright Cambridge University Press 2017
This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Rig... more This article proposes a two-standard interpretation of Immanuel Kant's Universal Principle of Right that tracks the two ways-civil and criminal-in which actions can be legally wrong. This article demonstrates in three ways that the principle is a plausible and resilient account of the essential distinction between civil and criminal wrongdoing. First, the Universal Principle of Right correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, which traditionally is not. Third, it justifies differences between the way in which we determine criminal punishments and the way in which we measure civil remedies. Moreover, as interpreted, the Universal Principle of Right offers a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority.
23 Cornell J.L. & Pub. Policy 553 (2014), May 1, 2014
Dennis F. Thompson developed a theory of “institutional corruption” in order to explain a phenome... more Dennis F. Thompson developed a theory of “institutional corruption” in order to explain a phenomenon that he believed the Congressional ethics rules failed to address: Congress’ systematic deviation from its proper purpose as a consequence—not merely of individual wrongdoing—but of the influence of several general systemic features of the legislative process. Researchers at Harvard University’s Edmond J. Safra Center for Ethics have recently deployed the language of institutional corruption broadly in analyses of various other public and private institutions, such as regulatory agencies, banks, pharmaceutical companies, and think tanks. The states of affairs that researchers have identified as “institutional corruption” fall into four categories: 1) breaches of fiduciary duty, 2) fraud or otherwise unfair commercial practices, 3) destructive firm behavior, and 4) mistake, inefficiency, or incompetence. This Article reveals that only the first of these represents a true application of Dennis F. Thompson’s theory of institutional corruption, which was originally developed in the context of Congressional ethics. Research projects that deploy the terminology of institutional corruption in nonfiduciary contexts are certainly valuable, but they do not address the subject matter of institutional corruption, properly understood.
Harvard Public Law Working Paper
How can we tell right actions from wrong ones? I believe that Kant’s Universal Principle of Right... more How can we tell right actions from wrong ones? I believe that Kant’s Universal Principle of Right establishes a dual standard for the rightness of actions, corresponding to the two distinct types of wrong actions that Kant describes elsewhere: formal wrongs and material wrongs. I will show that my interpretation better accords with Kant’s language than do alternative readings according to which Kant establishes a single standard. More importantly, only a two-standard reading along these lines can account for Kant’s related philosophical commitments concerning the nature of criminal wrongdoing.
7 JL Econ. & Pol'y 717 (2011), May 1, 2011
8 Rutgers J.L. & Pub. Policy 567 (2011)