"Innate Right in Hohfeldian Terms"

Abstract

Individuals sometimes do things that they know will violate the terms of a statute. Most
scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it deploys Hohfeldian legal concepts to clarify the features of the Kantian concept of innate right. It next proposes two closely related standards— one for legal obligation, and another for criminal wrongdoing—before testing the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.