The “new natural lawyers” (NNLs) are a prolific group of philosophers, theologians, and political theorists that includes John Finnis, Robert George, Patrick Lee, Gerard Bradley, and Germain Grisez, among others. These thinkers have devoted themselves to developing and defending a traditional sexual ethic according to which homosexual sexual acts are immoral per se and marriage ought to remain an exclusively heterosexual institution. The sterility objection holds that the NNLs are guilty of making an arbitrary and irrational distinction between same-sex couples (...) and sterile heterosexual couples. The NNLs believe that it is a necessary condition for two people’s being morally and legally entitled to get married that they be able to perform sexual acts that are “suited to procreating.” But sterile heterosexual couples are incapable of performing such acts. Therefore, it should follow from the NNLs’ own premises that sterile heterosexual couples are not entitled to marry. But the NNLs do not draw this conclusion. Instead, they maintain that sterile heterosexuals can marry while denying that the same is true of same-sex couples. The sterility objection claims the NNLs are being inconsistent in treating the two kinds of couples differently. Although the sterility objection has been endorsed by recent critics, I don’t think it has yet been adequately defended. The NNLs have responded by arguing that there is a sense in which the sex acts of sterile heterosexual couples are as suited to reproduction as those of fertile heterosexuals. Thus they maintain that the distinction they draw between the two kinds of couple has a rational basis. A successful defense of the sterility objection must show that this response on the part of the NNLs fails. Such is the task I undertake in this paper. I argue that the NNLs’ response fails because acts of penile-vaginal intercourse between sterile heterosexuals lack the actual causal power to produce conception that sexual acts need to be considered truly reproductive, and because their assumption that penile-vaginal intercourse always functions reproductively is bad biology. (shrink)

Turkish Bu makalede bireylerin eylemlerine müdahale etmenin tek haklı gerekçesinin başkalarına zarar gelmesini önlemek olduğunu ifade eden ‘‘zarar ilkesine (Zİ)’’ getirilen üç eleştiriyi tartıştım. Öncelikle ilkeyi anlamlı kılabilecek bir zarar tarifinin bulunmadığı eleştirisini ele alarak bu eleştirinin, ilkenin ancak problemsiz bir zarar tanımı ile birlikte makul kabul edilebileceği varsayımına dayandığını tespit ettim. Zarar kavramına ilişkin var olan bilgi dağarcığımızı görmezden gelmesi ve zarara başvuran ilkeler haricindeki diğer birçok ilkeyi de kapsayan genel bir şüpheciliğin önünü açması nedeniyle ilgili varsayımı reddetmemiz gerektiğini (...) savundum. İkinci olarak, zarar vermenin yanlışlığının halihazırda yaygın olarak kabul ediliyor olmasından ötürü Zİ’nin bize yeni bir şey söylemediği, zararın türü/miktarı gibi güncel tartışmaların yoğunlaştığı noktalarda suskun kaldığı ve dolayısıyla artık işlevsiz olduğu eleştirisini değerlendirdim. Buna karşın hangi zarar tarifinin benimsendiğinden bağımsız olarak Zİ’nin, zararın varlığı kanıtlanmadıkça bireylerin eylemlerinde serbest bırakılmaları gerektiğini vurgulayan bir özgürlük karinesini temsil etme ve bazı eylemlerin zarar içermese dahi yasaklanabileceğini düşünen hukuki ahlakçılara yasak taleplerini gerekçelendirme yükümlülüklerini hatırlatma şeklinde iki önemli işleve halen sahip olduğunu iddia ettim. Son olarak Zİ'nin potansiyel kötüye kullanımlarına dair endişelere değindim. Bu endişelerin giderilmesi için yapılması gerekenin, zarar içeren eylemleri belirlemeye çalışmak değil, her eylemin bir miktar zarar içerme olasılığına sahip olduğunu kabul ederek hangi tür zararların hukuken düzenlenmesi gerektiği özelinde makul bir seçenek ortaya koymak olduğunu iddia ettim. Zİ’nin suiistimallerinin genellikle zarar kavramının geniş yorumlanmasının ürünü olduğunu düşünerek, cebir ve hile eylemlerinin neden olduğu birinci derece zararları esas alan, hukuki öngörülebilirliği artıracak bir hukuki çerçeve benimsemeyi tercih ettim. Kuşkusuz bu tercih yasaklanması gereken bazı zararlı eylemlere karşı hukuki koruma sağlayamama riskini içermektedir; ancak bu, özgürlüğü korumayı taahhüt eden genel bir ilke ortaya koymak için ödenmesi gereken bir bedeldir. Buradan hareketle, ele aldığım üç eleştiriden hiçbirinin Zİ’nin reddedilmesini gerektirmediği sonucuna vardım. English In this article, I discuss three criticisms of ‘‘the harm principle (HP)’’, which states that the only justification for interfering with individual’s actions is to prevent harm to others. First, I address the criticism that there is no definition of harm that can make the principle reasonable, and I find that this criticism is based on the assumption that the principle can only be considered reasonable with an unproblematic definition of harm. I argue that we should reject this assumption because it ignores our existing knowledge of the concept of harm and opens the way for a general skepticism that extends to many principles other than those addressing harm. Secondly, I consider the criticism that, since the wrongfulness of causing harm is already widely accepted, the principle tells us nothing new, is silent on the points where current debates intensify, such as the type/amount of harm, and is therefore no longer functional. On the other hand, I argue that, regardless of the definition of harm adopted, the HP still serves two important functions: Representing a presumption of liberty that emphasizes that individuals should be free to act unless the existence of harm is proven, and reminding legal moralists who believe that some acts can be prohibited even if they do not involve harm of their obligation to justify such prohibitions. Finally, I address concerns about potential abuses of the HP. I argue that what is needed to address these concerns is not to try to identify acts that involve harm, but to recognize that every act has the potential to involve some level of harm, and to make a reasonable choice as to which types of harm should be regulated by law. Considering that abuse of HP often arises from a broad interpretation of the concept of harm, I prefer to adopt a legal framework that would increase legal predictability, based on the first-degree harms caused by acts of force and fraud. Undoubtedly, this choice entails the risk of failing to provide legal protection against certain harmful acts that should be prohibited, but this is a price that must be paid for a general principle that is committed to protecting liberty. Thus, I conclude that none of the three criticisms I discussed require the rejection of HP. (shrink)

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian (...) theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others. (shrink)

It has been argued that voluntary euthanasia (VE) and physician-assisted suicide (PAS) are morally wrong. Yet, a gravely suffering patient might insist that he has a moral right to the procedures even if they were morally wrong. There are also philosophers who maintain that an agent can have a moral right to do something that is morally wrong. In this article, I assess the view that a suffering patient can have a moral right to VE and PAS despite the moral (...) wrongness of the procedures in light of the main argument for a moral right to do wrong found in recent philosophical literature. I maintain that the argument does not provide adequate support for such a right to VE and PAS. (shrink)

“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. A virtue–centred account (...) of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR]. (shrink)

In response to Lawrence Solum's advocacy of a ‘virtue–centred theory of judging’, I argue that there is indeed important work to be done in identifying and characterising those qualities of character that constitute judicial virtues – those qualities that a person needs if she is to judge well (though I criticise Solum's account of one of the five pairs of judicial vices and virtues that he identifies – avarice and temperance). However, Solum's more ambitious claims – that a judge's vice (...) necessarily corrupts her decisions, and that in at least some contexts we must define a legally correct decision as one that would be reached by a virtuous judge – should be rejected: we can undermine the former by attending to the requirements of due process, and the latter by attending to the ways in which a judge would try to justify her decision. (shrink)

The aim of this paper is to critically discuss the plausibility of legal moralism with an emphasis on some central and recent versions. First, this paper puts forward and defends the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes and Michael Moore are more plausible than Lord Devlin's traditional account. The main argument for this thesis is that in its more modern versions legal moralism is immune to some of the forceful challenges made (...) to Devlin by Hart, Dworkin and Feinberg among others. Second, however, the paper challenges the new generation of legal moralists and suggests some areas for further development. Although Devlin's position has been scrutinized thoroughly in the literature on the philosophy of law, there has, to my knowledge, been no comparable, systematic critique of these different proponents of legal moralism. (shrink)

Legal moralists hold that the immorality of an action is a sufficient reason for the state to prevent it. Liberals in the tradition of Mill generally reject legal moralism. However, Larry Alexander has recently developed an argument that suggests that a class of legal restrictions on freedom that most liberals endorse is, and perhaps can only be, justified on moralistic grounds. According to Alexander, environmental restrictions designed to preserve nature or beauty are forms of legal moralism. In this paper, I (...) explore two liberal lines of response to Alexander’s argument. The first argues that an aesthetic interest is among our basic legally protectable interests. This argument claims that environmental and other regulations designed to protect beauty and nature are justified in order to prevent setbacks to this aesthetic interest. The second focuses on a democratic conception of the public interest. It holds that democratic communities are entitled, through their institutions, to shape the community and environment they live in. On this view, the community need not appeal to moralism to justify its adoption of environmental regulations, since in adopting such regulations it is simply enacting its collective preferences. On these grounds, I claim that Alexander’s case for the claim that aesthetic regulations can only be justified on moralistic grounds is much weaker than he takes it to be. (shrink)

In this paper I explore the concept of tolerance and suggest a description of that concept that could be accepted regardless of the political theory one supports. Since a neutral perception of the limits of tolerance is impossible, this paper offers a guideline for a substantive-liberal or a perfectionist-liberal approach to it. The limits of tolerance are described through the principles of reciprocity and proportionality. The former explains why intolerance should not be tolerated whereas the latter prescribes how and to (...) what extent it should be tolerated. The cumulative effect of these principles is that apart from extremely rare occasions intolerance should not be tolerated at any time. (shrink)

Abstract: This essay explores recent trends and major issues related to gay and lesbian philosophy in ethics (including issues concerning the morality of homosexuality, the natural function of sex, and outing and coming out); religion (covering past and present debates about the status of homosexuality and how biblical and qur'anic passages have been interpreted by both sides of the debate); the law (especially a discussion of the debates surrounding sodomy laws, same-sex marriage and its impact on transsexuals, and whether the (...) law should be used to enforce morality); scientific research into the origins of homosexuality (including discussion of arguments against such research); and metaphysics (especially the question of whether homosexuality is socially constructed during particular times and in particular cultures, or whether sexual orientation is an essential trait cutting across times and cultures). (shrink)

The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This (...) article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices. (shrink)

This symposium contribution offers a reconsideration of a range of “vice crime” legislation from late nineteenth and early twentieth century American law, criminalizing matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic and paternalistic ; and it was only later, in the late twentieth century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms. (...) This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales—similar to those that underlie modern, technocratic, “preventive justice” legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism. (shrink)

John Stuart Mill’s famous “harm principle” has been popular in the limitation of freedoms within human rights jurisprudence. It has been used formally in court cases and also informally in legal argumentation and conversation. Shortly, it is described as a very simple principle that amounts to the notion that persons are at liberty to do what they want as long as their actions do not harm any other person or society in general. This article questions whether it is legitimate to (...) use the harm principle in cases concerning the limitation of religious freedom within education. For example, can the exemption of a learner from sex education be denied based on the argument that such an exemption will cause harm? In order to answer this question, the meaning, origin and use of the harm principle are investigated. This article also discusses four main criticisms against the use of this principle in general and in cases of religious freedom of learners in education. (shrink)

Journal Name: SATS Issue: Ahead of print.

It has now been more than 50 years since H. L. A Hart and Lord Patrick Devlin first squared off in perhaps the most celebrated jurisprudential debate of the twentieth‐century (1959–1967). The central issue in that dispute—whether the state may criminalize immoral behavior as such—continues to be debated today, but in a vastly changed legal landscape. In this article I take a fresh look at the Hart‐Devlin debate in the light of five decades of social and legal changes.

Nicholas Wolterstorff and Christopher J. Eberle have defended the view that the ethics of liberal citizenship allows citizens to publicly support the passage of coercive laws based solely on their religious convictions. They also develop positive conceptions of virtuous citizenship that place moral limits on how citizens may appeal to their religion. The question I address in this essay is whether the limits they impose on citizens’ appeals to their religion are adequate. Since Eberle’s “ideal of conscientious engagement” provides us (...) with the most extensive statement of these limits, it is the primary focus of my attention here. My conclusion is that in its current form, Eberle’s ideal is not constraining enough. In the first section, I argue that Eberle’s ideal does not require citizens to be self-critical enough about their religious and political commitments. In the second section, I highlight a conflict between Eberle’s ideal and the need for citizens to respect the religious freedom of their fellow citizens. I argue that the way to resolve this conflict is to adopt a more fine-grained conception of religious reasons and to hold that citizens should not rely on religious reasons of certain kinds. In the final section, I argue that laws punishing or discouraging homosexual conduct (which Eberle’s ideal would apparently allow) violate what Wolterstorff calls “the Idea of liberal democracy” and so are not the kind of proposal that virtuous citizens can defend. (shrink)

Religious conservatives in the U.S. have frequently opposed public-health measures designed to combat STDs among minors, such as sex education, condom distribution, and HPV vaccination. Using Rawls’s method of conjecture, I will clear up what I take to be a misunderstanding on the part of religious conservatives: even if we grant their premises regarding the nature and source of sexual norms, the wide-ranging authority of parents to enforce these norms against their minor children, and the potential sexual-disinhibition effects of the (...) above public-health measures, their opposition to at least one of these measures, HPV vaccination, cannot be justified. In fact, their comprehensive doctrines, when properly interpreted, should lead them to back this measure and thereby draw closer to a policy consensus with other citizens regarding teenage sexual health. (shrink)