• Courses
• Vita
• Abstracts
• Research links

Constitutional Protections of Private Property: Decoupling the Takings and Due Process Clauses

3 University of Pennsylvania Journal of Constitutional Law 885 (May 2001). Available online and at lexis-nexis. Reprinted in Patricia E. Salkin, ed. 2002 Zoning and Planning Law Handbook (West Publishing, 2002), 99-151.

       The Supreme Court, in deciding whether a government enactment that restricts the use or value of private property amounts to a violation of a constitutional right, focuses on the "Takings Clause" of the Fifth Amendment, which declares that private property "shall not be taken for public use without just compensation."  In deciding whether a regulation of property amounts to a "taking"   the Court appeals to a variety of considerations: whether the government regulation amounts to a physical confiscation, whether it leaves the property owner with economically viable use of the property, whether the regulation was enacted to prevent a noxious use of property, whether the regulation unfairly singles out some people and forces them to bear a burden that should be borne by the public as a whole, whether on balance the benefits of the regulation outweigh the detriment to the property owner, and whether the regulation is necessary to the effectuation of a substantial public purpose. While all of these considerations may be relevant in making an all-things-considered judgment of whether it is a good thing, morally or as a matter of public policy, to allow government to restrict the use of property, several are logically unconnected to the takings clause, the plain meaning of which requires only that government must not "take" (i.e. confiscate, appropriate, seize, force one to relinquish) property, not that its regulations must be fair, or promote a particular end,  be justified on a principle of social utility, or be narrowly tailored to the effectuation of a substantial state interest.  A principled and textually grounded basis for deciding the scope of property rights afforded by the constitution requires what the Supreme Court has yet to give: recognition that there are not one but three distinct provisions protecting property rights. The other two provisions besides the "Takings Clause" are the "Due Process" clauses of the Fifth and Fourteenth Amendments, both of which prohibit governments from depriving any person of "life, liberty, or property without due process of law." Only some of the considerations weighed by the Court in its takings adjudication are relevant to the Fifth Amendment "Takings Clause." Several can be grounded only in  the due process clauses. Only by decoupling the takings and due process clauses and then identifying which of the clauses provides the anchor for each of the considerations the Court takes into account will the Courts' rulings on property rights be intellectually coherent. More importantly from a practical perspective, by properly linking each consideration to the appropriate textual provision we can remove some of the ambiguities in the principles and tests that Justices attempt to formulate based on these considerations.

Hegel's Justification of Hereditary Monarchy

Hegel claims hereditary monarchy is justified by 'the Concept'. Marx understands Hegel to mean by this that the institution has some metaphysical justification based on Hegel's speculative logic. But Hegel's justification can also be understood as nonfoundational, and as such it is a far more plausible defense of the institution then the defense Marx understands Hegel to give. By 'concept' Hegel sometimes means simply the principle or purpose of a thing. For Hegel the purpose of hereditary monarchy--its concept-- is to provide completely arbitrary final decisions in matters where there is no objective basis for deciding-- in such matters we need a groundless method. Given the limited role Hegel assigns the monarch, hereditary monarchy is justified by its concept (as opposed to 'the Concept'). By keeping the decision of who is monarch immune from factional struggles the unity of the state is preserved; and it won't matter if the monarch isn't particularly qualified since in a rational modern state experts will do most of the decision making, leaving for the monarch the formal task of 'dotting the i's'. There is, then, a non-foundational, non-metaphysical interpretation of Hegel's justification of hereditary monarchy. Important evidence supporting this reading is found in recently available texts of Hegel's Rechtsphilosophie lectures.

Hegel's Political Philosophy

Hegel claims that punishment is the criminal's right and makes the criminal free. In critically examining Hegel's justification of legal punishment, the author takes us to the core of Hegel's political philosophy, offering an account of what Hegel means by right and freedom. Drawing on recently published but still untranslated lecture notes of Hegel's philosophy of right, which illuminate Hegel's notoriously difficult texts, the author rejects the position that Hegel uncritically accepts existing practices, as is often thought. Acknowledging that Hegel opposes radical criticism of the sort later offered by Marx, the author argues that instead Hegel offers another type of criticism-- immanent criticism. Hegel uses the ideal he believes immanent in the practice of legal punishment, retribution, to criticize the actual practice when it diverges from this ideal. The author shows how Hegel defends specific features of the practice that accord with the retributive ideal, and criticizes other features that contradict it. He discusses Hegel's views on what acts should be made crimes, justified disobedience, criminal accountability, jury trial, sentencing, capital punishment, and plea-bargaining. This is the first book-length treatment in English that shows Hegel applying his ideals to a single concrete social practice. The work is addressed not merely to Hegel specialists, but also to those interested in the criminal law, the interpretation of legal institutions and social practices, and justification from an immanent standpoint. 

Punishment: Theory and Practice

Unlike other treatments of legal punishment, Punishment: Theory and Practice takes both an external approach, asking why we punish at all, and an internal approach, considering issues faced by those 'inside' the practice: For what actions should we punish? Should we allow plea-bargaining? the insanity defense? How should sentencing be determined? The two approaches are connected: To decide whether to punish someone who is 'insane', or who cops a plea, we need to ask whether doing so is consistent with our theory of why we punish at all. In connecting theory and practice, the author draws on a broad range of thought: radical criticisms of punishment (Nietzsche, Foucault, Marxists), sociological theories (Durkheim, Girard), various philosophical traditions (utilitarian, German Idealism, modern liberalism), and the 'law and economics' movement. Against radical critics who argue we shouldn't punish at all, but who then leave us without an alternative for dealing with crime, the author defends the practice, offering a version of retribution (which he distinguishes from revenge and non-consequential theories) that holds we punish not to deter, reform, or otherwise augment social utility, but to mete out just deserts, vindicate right, and express society's condemnation of actions it deems blameworthy. The author shows how this theory best accounts for how we do punish, and then uses this theory to provide immanent criticism of certain features of our actual practice that don't accord with the retributive principle. 

Political Identity and the Ties that Bind: Hegel's Practice Conception

Hegel thinks the state is so important to our identity that we should be willing to give our lives for it. He characterizes the state as our ethical "substance." It is sometimes inferred from this that he thinks members of a modern state form a tightly-knit, culturally and ethnically homogeneous community. A close reading of his texts shows, rather, that Hegel does not think they must be a "community," or of the same race or ethnicity, or speak the same language, or practice the same religion. I explore Hegel's view of the ties that bind members of a state, arguing that what he thinks members must share are social practices. I conclude by considering whether in his effort to forge a common identity Hegel resorts to ties too weak to justify the claims he makes about the state being our substance, something worth dying for.

Are there Natural Rights?--Hegel's Break with Kant

Hegel criticizes Kant's categorical imperative and social contract theory of political obligation, but these criticisms miss the mark, for Kant is not really a consent theorist, nor is his categorical imperative empty. The most distinct break Hegel makes with Kant's philosophy of right is rather his rejection of a theory of natural rights, a theory central to Kant's Metaphysics of Morals. While Hegel offers a theory of natural right in some sense, he does not think individuals have natural rights, contrary to what recent commentators (Wood, Smith) suggest.

Is Kant a Retributivist?

Retributivists are often thought to give 'deontological' theories of punishment, arguing that we should punish not for the beneficial consequences of doing so such as deterrence or incapacitation, but purely because justice demands it. Kant is often regarded as the paradigmatic retributivist. In some passages Kant does appear to give a deontological theory of punishment. For example, Kant insists that on an island where all the people were to leave the next day, forever dissolving and dispersing the community, the last murderer in jail would have to have his execution carried out before the diaspora--justice demands it. In other passages, however, Kant defends punishment by appealing to its beneficial consequences.  For example, after supposing that one man on a life raft pushes the other off to save his own life, Kant says that the former man should not be legally punished "because that punishment would have to be death, and it would be an absurd law that threatened death to one who refuses to die voluntarily in a dangerous situation." In this passage Kant's reasoning is that state laws, by threatening us with sanctions, are intended to prevent us from violating rights--the point of these laws is to deter. A law that imposes a punishment that could not deter is an absurd law. I argue that while Kant rejects consequentialism in thinking about moral actions, he distinguishes law and morality, and in the sphere of law, an action we take is to be justified by appealing to the good it yields. The point of legal punishment is to deter violations of rights and protect us from a state of nature in which no one's freedom is assured. Kant's theory of legal (as opposed to moral) punishment is not deontological. Nevertheless we can characterize his consequentialist theory of legal punishment as retributive in some sense. The paper then considers how the passages about punishment in Kant where he invokes consequentialist thinking can be reconciled with other passages where he insists on punishment regardless of the consequences.

The Moral Obligation to Obey Law

Is it always morally wrong to violate a law and in doing so does one necessarily act badly? I argue that whether in breaking a law one acts badly depends on considerations unique to the particular act of lawbreaking. The moral judgment in question is deeply contextual and cannot be settled by appeal to blanket moral rules such as that it is wrong to break (any) law. The argument is made by focusing on the example of a runner having to decide whether to disobey the law against trespass. If in trespassing one acts badly it is not because there is a prima facie moral obligation to obey law. Theories of political obligation which ground an obligation to obey law in the principles of fairness or gratitude or in consent all fail to provide a persuasive reason not to trespass given a particular fact situation. I argue that when it is morally wrong to trespass it is morally wrong not because one has broken the law, but because and insofar as one has violated reasonable expectations of privacy. Whether there is a reasonable expectation of privacy in one's property depends in part on the character of the property in question.

Privacy in the face of new technologies of surveillance

This article addresses the question of whether an expectation of privacy is reasonable in the face of new  technologies of surveillance, by developing a principle that best fits our intuitions. A "no sense enhancement" principle which would rule out searches using technologically sophisticated devices is rejected. The paper instead argues for the "mischance principle," which proscribes uses of technology that reveal what could not plausibly be discovered accidentally without the technology, subject to the proviso that searches that serve a great public good that clearly outweighs minimal intrusions upon privacy are permissible. Justifications of the principle are discussed, including reasons why we should use the principle and not rely solely on a utilitarian balancing test. The principle is applied to uses of aerial photography and heat-detection devices.

Practices and Principles: Approaches to Ethical and Legal Judgment

Are there universally valid moral principles that dictate what's right regardless of what the consensus is within a particular society? Or are moral judgments culturally relative, ultimately dictated by conventions and practices which vary among societies? Practices and Principles takes up the debate between cultural relativists and universalists, and the related debate in political philosophy between communitarians and liberals, each of which has roots in an earlier debate between Kant and Hegel. Rejecting uncritical deference to social practice, the author acknowledges the need for standards for judging existing practices; but, he argues, the fact that there are principles we can use to criticize practices does not mean we can ignore social practice when making ethical and legal judgments. While defending principled criticism, the author shows the important role social practices have both in selecting and applying principles. He shows precisely how both principles and practices interact through three case studies: promises, contract law, and the fourth amendment issue of whether an expectation of privacy is reasonable. When we turn to particular instances of ethical and legal judging we find that it is appropriate sometimes to appeal to principles that seem foreign to a culture to criticize aspects of that culture, sometimes to appeal to principles immanent in a culture and its practices, sometimes to defer to expectations arising from practices without subjecting the practices to critical scrutiny. The author rejects simplifying dichotomies that force us to choose between either practices or principles, universalism or relativism, and liberalism or communitarianism.

 Political Theory , vol. 26, No. 4 (August 1998), 514-535. Available online through jstor. Reprinted in Michael Salter, ed. Hegel and Law (Ashgate Publishing, 2002)

Hegel for the most part insists we support existing practices: they have endured, have socialized us, are our home. At times Hegel seems to demand conformity, to leave no room for dissent or disobedience.  Hegel gives great weight  to the authority of the state and of custom. But Hegel does not leave the individual confronted with an unjust state powerless. To Hegel, we are obligated to obey the law if we are at home in the state, if its practices, institutions and laws are rational, if the free will "comes into existence" in it. But on Hegel's view, if the practices, institutions and laws of the state are not rational, we are not obligated to comply with their demands. Few recognize that Hegel even allows for justified disobedience, let alone that he can tell us anything about the conditions under which disobedience is justified. This is partly attributable to the fact that important texts concerning Hegel's views have only recently been discovered and published.  For example, in a passage from one of these texts, a set of notes of Hegel's lectures on political philosophy, Hegel declares that if my free will does not come into existence in the state, I have no corresponding duty to the state. My purpose is to articulate a distinctive Hegelian theory of justified disobedience, show how it differs  both from the traditional understandings of Hegel's views and from contemporary approaches to the problem of justified disobedience, and briefly to point to some difficulties with Hegel's position that need to be worked out if it is to be a satisfactory alternative.

Journal of Social Philosophy 29:2 (Fall, 1998), 87-96

The natural duty theory holds that "we have a natural duty to support the laws and institutions of a just state" (Jeremy Waldron). We owe this not because we ever promised to support these laws and institutions, nor because fair play requires we support the cooperative ventures from which we receive benefits. The claim is that we have a general duty to promote institutions that do something justice requires wherever these institutions may be, a duty that does not depend on our having special ties to these institutions, special ties of the sort we have to the institutions of our own government. I argue that we do not need to appeal to the idea of a natural duty to justify compliance with many laws. For example, New Zealanders must not murder, rape, or steal while in France, not because they have a duty to obey laws of a just state, but because it is wrong to murder, rape, or steal. If the natural duty theory is taken to be a statement of the conditions necessary for an obligation to exist, it would wrongly conclude there is no duty to obey laws against murder or rape in a state whose institutions and laws are not just.  A second class of laws reflect not moral judgments but, rather, local conventions, conventions that are morally arbitrary but which may be useful in coordinating action. For example, New Zealanders visiting France must drive on the right side of the road, as dictated by French convention. Here, too, the natural duty theory fails to provide an appropriate account of the relation noncitizens have to such laws. Our reasons for driving on the right side of the road when this is accepted convention have nothing to do with the justice of the institutions of the state. To flout this convention is not to undermine justice since there is  nothing just or unjust about driving on one side of the road or another. I question the advantages of the natural duty theory, especially in light of  important ambiguities in the theory. The natural duty theory has the distinct disadvantage that the conditions which must obtain for the theory to establish a moral reason for complying with any law or institution are more ambiguous and difficult to apply than the conditions for its two leading alternatives--consent and fairness theories.

Journal of Value Inquiry 35:517-34 (December 2001). Available online.

Does privacy--the condition of being invisible to public scrutiny--in so emphasizing individual rights, undermine community? One objection to privacy is that it is a license to engage in antisocial activity that undermines social norms. Another objection is that privacy encourages isolation and anonymity, also undermining community. Drawing on the political theory of Hegel, the paper argues that in theory the value of privacy can promote the value of community. Some invasions of privacy can undermine a sort of autonomy essential for maintaining a community. The paper also clarifies what we need to know before establishing whether privacy empirically promotes or undermines community.
 

Mill's harm principle declares that one's liberty of action may be interfered with by the state only if one has caused harm to others. Cases of culture clash involve unassimilated subjects, be they citizens, aliens, immigrants or national minorities, who violate the law while engaging in a practice that is a prevalent and legitimate part of their native culture or religion and which they do not regard as harmful. A Millian approach to the punishment of unassimilated subjects is explored by examining Mill's views on whether there is an objective standard of harm and Mill's discussions of free will, moral responsibility and the respect due to native cultures.

'Can culture excuse crime?--evaluating the inability thesis'
Punishment and Society 6:395-409 (October 2004), available online.

The inability thesis holds that one’s culture determines behavior and can make one unable to comply with the law and therefore less deserving of punishment. Opponents of the thesis reject the view that humans are made physically unable to act certain ways by their cultural upbringing. The article seeks to help evaluate the inability thesis by pointing to a literature in cultural psychology and anthropology presenting empirical evidence of the influence of culture on behavior, and offering conceptual analysis of the concept of determinism and its connection to moral culpability. Without conceding that culture never determines behavior, the author argues that opponents of the inability thesis err in drawing a moral implication from this premise. What matters in formulating moral judgments about punishment are not the possibility but the reasonability of complying with the law. Cultural influences may make an action reasonable that without similar cultural influences would be unreasonable.

Some critics of Mill understand him to advocate the forced assimilation of people he regards as uncivilized, and to defend toleration and the principle of liberty only for civilized people of the West. Examination of Mill’s social and political writings and practice while serving the British East India Company shows, instead, that Mill is a ‘tolerant imperialist’: Mill defends interference in India to promote the protection of legal rights, respect and toleration for conflicting viewpoints, and a commercial society that can cope with natural threats. He does not think the principle of liberty is waived for the uncivilized, or that the West should forcibly reshape them in its own monistic image. Mill’s tolerant imperialism reflects a tension between liberty and moral development that surfaces also when Mill thinks about the scope of government in civilized societies.