With wit and intelligence, Leo Katz seeks to understand the basic rules and concepts underlying the moral, linguistic, and psychological puzzles that plague the criminal law. "_Bad Acts and Guilty Minds_... revives the mind, it challenges superficial analyses, it reminds us that underlying the vast body of statutory and case law, there is a rationale founded in basic notions of fairness and reason.... It will help lawyers to better serve their clients and the society that permits attorneys to hang (...) out their shingles."—Edward N. Costikyan, _New York Times Book Review_. (shrink)

Why does the law spurn win-win transactions? -- Things we can't consent to, though no one knows why -- A parable -- Lessons -- The social choice connection -- Why is the law so full of loopholes? -- The irresistible wrong answer -- What is wrong with the irresistible answer? -- The voting analogy -- Turning the analogy into an identity -- Intentional fouls -- Why is the law so either/or? -- The proverbial rigidity of the law -- Line drawing (...) as a matter of life and death -- Why don't we punish all we condemn? -- The undercriminalization problem -- Multicriterial ranking and the undercriminalization problem -- Final thoughts. (shrink)

This is a review of Larry Alexander and Kim Ferzan’s _Reflections on Crime and Culpability_, a sequel to the authors’ _Crime and Culpability_. The two books set out a sweeping proposal for reforming our criminal law in ways that are at once commonsensical and mindbogglingly radical. But even if one is not on board with such a radical experiment, simply thinking it through holds many unexpected lessons: startlingly new insights about the current regime and about novel ways of doing legal (...) theory, some of which are explored in this essay. (shrink)

This essay offers a critique of Larry Temkin’s seminal new book, Rethinking the Good, at the heart of which is the highly counterintuitive claim that all things considered judgments are not transitive. I evaluate Temkin’s claims through the lens of social choice theory, pursue some of its larger implications and applications, and conclude with a very general worry having to do with the intimate connection between transitivity and logical consistency, namely whether, if Temkin is right, this would not bring all (...) moral reasoning to an abrupt halt. (shrink)

Role morality refers to the special obligations and rights that are associated with occupying certain professional roles—lawyer, doctor, journalist, soldier and others. There are a number of moral puzzles peculiar to this domain. To what extent can someone whose role involves acting in someone else’s behalf avoid being blamed for aiding him in actions he would be blamed for if acting outside that role? What is one to make of situations in which the performance of one’s role seems to call (...) for the actors to engage in conflicting behavior, for example, two lawyers representing two disputing clients? Is it coherent to speak of some roles as involving obligations to institutions rather than to people? In this chapter the problems are spelled out, the current debate surveyed and tentatively different conclusions from the established ones are suggested. (shrink)

We characterize general constraints under which rational choices are characterized by asymmetric revealed preferences. A key feature of our main characterization result is expressed by the leveling axiom. We also consider the special case of a law-abiding decision maker who chooses optimally among legal options. We show that the law does not necessarily satisfy the leveling axiom and, therefore, transitivity adds empirical content to law-abiding choices.

For every legal concept X, there are clear instances exemplifying an X and clear instances exemplifying a non-X. The cases that come before courts are those that seem to lie in between, being neither clearly an X nor clearly a non-X. It is tempting to think that, being in-between, they should receive an in-between treatment, that is, to the extent that they are an X they should be treated as an X. If they are sixty percent toward being an X, (...) they should get sixty percent of the treatment due an X. But this presupposes that in-between cases can be rank-ordered at least roughly according to the degree of their X-ness. This Article explains why that generally cannot be done and why courts therefore go for an either/or approach: something gets treated either as an X or as a non-X. The explanation is rooted in the kind of phenomena explored in the theory of social choice and multi-criterial decision-making. (shrink)

The entrapment defense is a puzzle of long standing. One the one hand, we are offended by the government’s subjecting someone vulnerable to extreme temptation. It seems like something anyone might fall prey to. On the other hand, it is hard to explain why someone who actually commits, or attempts a crime, and who would be liable if anyone other than the government had tempted him, should escape punishment. His blameworthiness seems the same. This essay seeks to illuminate this puzzle (...) by showing how it parallels the long-standing debate surrounding the criminal law problem of the actio libera in causa—situations in which someone seeks to escape liability by contriving to put a certain defense in place, such as provoking his victim into attacking him, so that he can then kill him in self-defense. The parallels between the two problems do not serve to resolve either, but make them appear in a rather different light. (shrink)

This chapter contains sections titled: Why We Punish How We Punish What We Punish Whom We Punish Bibliography.

Der Aufsatz bietet einen Einblick in die Möglichkeiten, Normen zu umgehen - einer Praxis mit, wie gezeigt wird, langer Tradition. Die dargestellten Methoden reichen von einer Beeinflussung des Wissens des Täters, über das Heranziehen "anderer", seien es Menschen oder Maschinen, um die gewünschte aber verbotene Handlung vorzunehmen, bis hin zu Änderungen in den Kausalverläufen. Der Grund für diese Umgehungsmöglichkeiten liegt im Formalismus deontologischer Systeme, die im Gegensatz zu utilitaristischen Positionen gerade nicht auf die Folgen einer Handlung abstellen.

Negligence, the creation of an unjustifiable risk of harm, plays a pivotal role in both criminal and civil law. This article takes up two negligence-related problems unique to its role in the criminal law. The first has to do with its "harm" component, the second with its "unjustifiability" component. The first problem is why the criminal law distinguishes so sharply between negligent wrongdoing that results in harm and negligent wrongdoing that does not, when it does not distinguish equally sharply between (...) intentional wrongdoing that results in harm and intentional wrongdoing that does not. The answer has to do with a peculiar feature in the logic of intention and with the symmetric way we ascribe responsibility for blameworthy and praiseworthy actions. My second problem is why the criminal law judges the blameworthiness of negligent actions on the basis of the harm wrought rather than the gap between the harm wrought and the justification for risking it. The answer has to do with a more general feature of the criminal law, the refusal to recognize "partial defenses" and "partial offenses.". (shrink)

Libertarians believe certain things about rights and responsibilities, about when one person is to be held responsible for invading the rights of another. Libertarians also believe certain things about consent, about when someone should be held to a contract he has entered into. What they don't realize is that the first set of beliefs doesn't mix well with the second set of beliefs—that their intuitions about rights and responsibilities quite simply don't square with their intuitions about consent. Or so I (...) shall be trying to show in this essay. (shrink)

Libertarians believe certain things about rights and responsibilities, about when one person is to be held responsible for invading the rights of another. Libertarians also believe certain things about consent, about when someone should be held to a contract he has entered into. What they don't realize is that the first set of beliefs doesn't mix well with the second set of beliefs—that their intuitions about rights and responsibilities quite simply don't square with their intuitions about consent. Or so I (...) shall be trying to show in this essay. (shrink)

This essay explores the case against strict liability offenses as part of the more general debate about proportional punishment. This debate takes on a very different look in light of a formal result derived by the authors elsewhere, that is briefly summarized and whose implications are pursued here. Traditional objections that consequentialists have mounted against the deontologists’/retributivists’ defense of proportionality fall by the wayside, but a new threat to the proportionality requirement replaces it: the ease with which any such requirement (...) can be circumvented. (shrink)

You buy a lottery ticket and you lose. You are sorry, but you wouldn't dream of complaining. Why then do you feel entitled to complain in the following sorts of cases?

In this eye-opening look at the doctor-patient decision-making process, physician and law professor Jay Katz examines the time-honored belief in the virtue of silent care and patient compliance. Historically, the doctor-patient relationship has been based on a one-way trust -- despite recent judicial attempts to give patients a greater voice through the doctrine of informed consent. Katz criticizes doctors for encouraging patients to relinquish their autonomy, and demonstrates the detrimental effect their silence has on good patient care. Seeing (...) a growing need in this age of medical science and sophisticated technology for more honest and complete communication between physician and patients, he advocates a new, informed dialogue that respects the rights and needs of both sides. In a new foreword to this edition of The Silent World of Doctor and Patient , Alexander Morgan Capron outlines the changes in medical ethics practice that have occurred since the book was first published in 1984, paying particular attention to the hotly debated issues of physician-assisted suicide and informed consent in managed care. (shrink)

What is the relationship between the permissibility/impermissibility of the part and the permissibility/impermissibility of the whole? Does the moral or legal status of a constituent part of an actor’s course of conduct govern the status of the actor’s whole course of conduct or, conversely, does the moral and legal status of the actor’s whole course of conduct govern the status of the constituent parts? This broader issue is examined in the more specific contexts of the contrived defense and deterrent threat (...) doctrines. The latter doctrine concerns whether a prima facie impermissible act of carrying out a threatened action may be rendered permissible if embedded within an overall permissible course of action including the issuance of a deterrent threat that fails to induce compliance. The contrived defense doctrine addresses the permissibility of an actor who contrives or culpably causes the conditions of her own defense. This essay considers the claim—advanced by Claire Finkelstein and Leo Katz—that the contrived defense and deterrent threat doctrines are sufficiently related such that the preferable approach to each doctrine informs and supports the preferable approach to the other. In each, the permissible/impermissible status of the whole governs the status of the part. Regarding contrived defenses, the impermissibility of the actor’s whole course of conduct renders the otherwise permissible constituent part relating to the defense also impermissible. And regarding deterrent threats, the permissibility of the actor’s whole course of conduct renders the otherwise impermissible constituent parts also permissible. This essay challenges the claimed linkage between the contrived defense and deterrent threat doctrines by proposing hypothetical situations in which the claimed parallel doctrines collapse into each other. As a result, the application of the preferred approaches to each doctrine generates a contradiction. (shrink)

Over the past few decades, Indigenous communities have successfully campaigned for greater inclusion in decision-making processes that directly affect their lands and livelihoods. As a result, two important participatory rights for Indigenous peoples have now been widely recognized: the right to consultation and the right to free, prior and informed consent (FPIC). Although these participatory rights are meant to empower the speech of these communities—to give them a proper say in the decisions that most affect them—we argue that the way (...) these rights have been implemented and interpreted sometimes has the opposite effect, of denying them a say or ‘silencing’ them. In support of this conclusion we draw on feminist speech act theory to identify practices of locutionary, illocutionary, and perlocutionary group silencing that arise in the context of consultation with Indigenous communities. (shrink)

In Homos, he studies the historical, political, and philosophical grounds for the current distrust, within the gay community, of self-identifying moves, for the ...

Maude's excellent translation of Tolstoy's treatise on the emotionalist theory of art was the first unexpurgated version of the work to appear in any language. More than ninety years later this work remains, as Vincent Tomas observed, "one of the most rigorous attacks on formalism and on the doctrine of art for art's sake ever written". Tomas' Introduction makes this the edition of choice for students of aesthetics and anyone with philosophical interests.

This article analyzes the question of how the size of bribes should impact criminal sanctions. In contrast to the commonly held view that punishment should increase with the size of the bribe, we argue to the contrary: that the punishment of the bribee should decrease with the size of the bribe. Our conclusion is based both on a philosophical argument and an economic argument. We argue that all else being equal, as an agent’s reservation price for selling public interests decreases, (...) the culpability of the agent willing to receive a bribe increases. In addition, from an economic perspective, the expected social harm of an official acting with a low reservation price for bribes is much greater than one acting with a high reservation price: both the susceptibility of being bribed as well as the potential for social harm is much greater when the reservation price is low. (shrink)

Yeshayahu Leibowitz (1903–1994) was an Israeli philosopher and scientist. For decades, his thinking and persona were the embodiment of a Judaism in Israel. Getting to know him is getting to know a great Israeli thinker and also invites a window into the life of Israel and its problems.

Offering an innovative approach to critical thinking, Good Reasoning Matters! identifies the essential structure of good arguments in a variety of contexts and also provides guidelines to help students construct their own effective arguments. In addition to examining the most common features of faulty reasoning--slanting, bias, propaganda, vagueness, ambiguity, and a common failure to consider opposing points of view--the book introduces a variety of argument schemes and rhetorical techniques. This edition adds material on visual arguments and more exercises.

In this paper, I explore what gives collective testimony its epistemic credentials, through a critical discussion of three competing accounts of the epistemology of collective testimony. According to the first view, collective testimony inherits its epistemic credentials from the beliefs the testimony expresses— where this can be seen either as the beliefs of all or some of the group’s members, or as the beliefs of group itself. The second view denies any necessary connection to belief, claiming instead that the epistemic (...) credentials of collective testimony derive from the reliability or truth-conduciveness of the statement that expresses the testimony. Finally, the third view claims that the epistemic credentials of collective testimony derive from the fact that it involves undertaking a collective commitment to trustworthiness, which makes the group susceptible to rebuke and blame if its testimony is not trustworthy. I argue that this last account holds the most promise for preserving what is distinctive about testimonial knowledge while still underwriting a robust epistemology of collective testimony. (shrink)

Leo Strauss articulates the conflict between reason and revelation as he explores Spinoza's scientific, comparative, and textual treatment of the Bible. Strauss compares Spinoza's Theologico-political Treatise and the Epistles, showing their relation to critical controversy on religion from Epicurus and Lucretius through Uriel da Costa and Isaac Peyrere to Thomas Hobbes. Strauss's autobiographical Preface, traces his dilemmas as a young liberal intellectual in Germany during the Weimar Republic, as a scholar in exile, and as a leader of American philosophical thought. (...) "[For] those interested in Strauss the political philosopher, and also those who doubt whether we have achieved the 'final solution' in respect to either the character of political science or the problem of the relation of religion to the state." -- Journal of Politics "A substantial contribution to the thinking of all those interested in the ageless problems of faith, revelation, and reason." -- Kirkus Reviews Leo Strauss (1899-1973) was the Robert Maynard Hutchins Distinguished Service Professor Emeritus of political science at the University of Chicago. His contributions to political science include The Political Philosophy of Hobbes, The City and the Man, What is Political Philosophy?, and Liberalism Ancient and Modern. (shrink)

According Philip Pettit, suitably organised groups not only possess ‘minds of their own’ but can also ‘make up their minds’ and 'speak for themselves'--where these two capacities enable them to perform as conversable subjects or 'persons'. In this paper I critically examine Pettit's case for group personhood. My first step is to reconstruct his account, explaining first how he understands the two capacities he considers central to personhood – the capacity to ‘make up one’s mind’, and the capacity to ‘speak (...) for oneself’ – before showing how he thinks these can be manifested in groups. With Pettit’s account duly reconstructed, I then turn to criticism, arguing that Pettit’s construal of making up one’s mind does not do proper justice to our first-personal self-understanding, nor to our characteristic interpersonal forms of engagement. This leads me, finally, to consider an alternative construal of ‘making up one’s mind’ and ‘speaking for oneself’ that is associated with the work of Richard Moran and whichargue, could usefully be exteextended to groups. (shrink)

Maude's excellent translation of Tolstoy's treatise on the emotionalist theory of art was the first unexpurgated version of the work to appear in any language. More than ninety years later this work remains, as Vincent Tomas observed, "one of the most rigorous attacks on formalism and on the doctrine of art for art's sake ever written". Tomas' Introduction makes this the edition of choice for students of aesthetics and anyone with philosophical interests.

In this chapter, Dahan Katz defends relational conceptions of retribution and desert. She clarifies the ways in which such relational conceptions avoid major worries associated with retributive theory, while addressing further worries that arise distinctively with respect to such an approach. In doing so, Dahan Katz provides further defense of the response-retributive theory of punishment that she has proposed elsewhere, while defending a wider set of views within the retributive tradition.

This paper offers a response retributive theory of punishment, taking the role of the punisher as well as the relations between the parties to punishment to be central to retributive justification. It proposes that punishment is justified in terms of the ethics of appropriate response, and more precisely, in terms of the duty agents have to dissociate from the devaluation inherent in the culpable wrongdoing of others. The paper demonstrates that on such account, while the harm and suffering involved in (...) punishment are rightly imposed, they are not good, grounding a further duty to mitigate our retributive practices. The result is a moderate vision of retributive justification, which has the resources to justify, not only criminal punishment, but punishment as imposed across a wide variety of relations: private, institutional and political. (shrink)