During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from (...) both the Anglo-American and European traditions. Not only does it help make some of the best work avail able to an international audience, but it also encourages increased awareness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowed scholars. Legal philosophy should not be considered a narrowly circumscribed field. (shrink)

Many legal, social, and medical theorists and practitioners, as well as lay people, seem to be concerned with the harmfulness of discriminative practices. However, the philosophical literature on the moral wrongness of discrimination, with a few exceptions, does not focus on harm. In this paper, I examine, and improve, a recent account of wrongful discrimination, which divides into a definition of group discrimination, and a characterisation of its moral wrong-making feature in terms of harm. The resulting account analyses the wrongness (...) of discrimination in terms of intrapersonal comparisons of the discriminatee’s actual, and relevantly counterfactual, well-being levels. I show that the account faces problems from counterfactuals, which can be traced back specifically to the orthodox - comparative, counterfactual, welfarist - concept of harm. I argue that non-counterfactual and non-comparative harm concepts face problems of their own, and don’t fit easily with our best understanding of discrimination; hence they are unsuitable to replace the orthodox concept here. I then propose a non-orthodox - comparative, counterfactual, hybrid - concept of harm, which relies on counterfactual comparisons of ways of being treated. I suggest how such a concept can help us handle the problems from counterfactuals, at least for my account of discrimination. I also show that there are similar proposals in other harm-related debates. An upshot of the paper is thus to corroborate the case for a non-orthodox, hybrid concept of harm, which seems better able to fulfil its functional roles in a variety of contexts. (shrink)

This article will present the argument for treating democratic states as moral and not only legal collective entities; that is, it will apply the theory of collective rights of cultural groups in a (closed) domestic political setting to democratic states in international relations. Numerous experiences by self-identifying cultural groups bear witness to the fact that morally important objectives are not always reached by merely treating individuals as the sole bearers of moral status. In order to prevent latent cultural imperialism, many (...) countries around the world have adopted various models of collective rights protection and policies of preferential treatment for these groups. This article will examine whether it is possible to make a parallel between cultural groups and democratic states; in particular, whether it is feasible to think of democratic states as moral entities and what the normative implications of such a view for contemporary international relations and trade would be. (shrink)

This paper tries to explain why racial profiling involves a serious injustice and to do so in a way that avoids the problems of existing philosophical accounts. An initially plausible view maintains that racial profiling is pro tanto wrong in and of itself by violating a constraint on fair treatment that is generally violated by acts of statistical discrimination based on ascribed characteristics. However, consideration of other cases involving statistical discrimination suggests that violating a constraint of this kind may not (...) be an especially serious wrong in and of itself. To fully capture the significant wrong that occurs when racial profiling is targeted at black Americans or other similarly situated groups, it is argued that we should appeal to the idea that this basic injustice is exacerbated when it forms part of a larger pattern of similar actions that collectively realize a state of cumulative injustice. (shrink)

A frequent caveat in online dating profiles – “No fats, femmes, or Asians” – caused an LGBT activist to complain about the bias against Asians in the American gay community, which he called “racial looksism”. In response, he was asked that, if he himself would not date a fat person, why he should find others not dating Asians so upsetting. This response embodies a popular attitude that personal preferences or tastes are simply personal matters – they are not subject to (...) moral evaluation. In this paper, I argue, against this popular attitude, that a personal preference like racial looksism is indeed wrong. A preference like racial looksism is wrong because it is an overgeneralization that disrespects individuality by treating people as exchangeable tokens of one type, and such disrespect denies its objects appreciation that their dignity entitles them to. As it turns out, there is on my account a relevant moral difference between racial looksism and simple looksism. (shrink)

Jack and Jill have both applied for the same entry-level position at a local university. After interviewing the leading candidates, the members of the hiring committee agree that both Jack and Jill have all the necessary qualifications for appointment to the position. Both have the required education and training. Both have strong letters of recommendation from their Ph.D. supervisors and from their current employers. Both are similarly experienced and both are potentially capable of making important future contributions to their chosen (...) discipline. The members of the hiring committee also agree that Jack and Jill are superior to all other applicants for the position. In short, in the judgment of the hiring committee, they are the two best qualified candidates and both meet their potential employer's expectations concerning a successful applicant. Yet neither Jack nor Jill is clearly superior to the other. (shrink)

Granting differential treatment is often considered a way of placing some groups in a better position in order to maintain or improve their cultural, economic, health-related or other conditions, and to address persistent inequalities. Critics of multiculturalism have pointed out the tension between protection for groups and protection for group members. The ‘rule-and-exemption’ approach has generally been conceived as more resistant to such criticism insofar as exemptions are not conceded to minorities or ethical and religious groups as such, but to (...) individuals who are part of those groups. However, I show that when a government grants an exemption, it inevitably provides a definition of the relevant group in question, and the tendency is to take cultural membership as ‘given’ or as defined by group spokespersons. I discuss some problems related to these definitions and defend instead a definition based on shared group interests. (shrink)

We analyze a frequent but undertheorized form of structural injustice, one that arises due to the difficulty of reaching numerically equitable representation of underrepresented subgroups within a larger group. This form of structural injustice is significant because it could occur even if it were possible to completely eliminate bias and overt discrimination from hiring and recruitment practices. The conceptual toolkit we develop can be used to analyze such situations and propose remedies. Specifically, based on a simple mathematical model, we offer (...) a new argument in favour of quotas, explore implications for policy-making, and consider the wider philosophical significance of the problem. We show that in order to reach more equitable representations, quota-based recruitment may often be practically unavoidable. Assuming that members of groups in statistical minority are more likely to quit due to their marginalization, their proportions can stabilize at a low level, preventing a shift towards more equal representation and conserving the minority status of the subgroup. We show that this argument has important implications for addressing, preventing, and remediating the structural injustice of unfair representation. (shrink)

We analyze a frequent but undertheorized form of structural injustice, one that arises due to the difficulty of reaching numerically equitable representation of underrepresented subgroups within a larger group. This form of structural injustice is significant because it could occur even if it were possible to completely eliminate bias and overt discrimination from hiring and recruitment practices. The conceptual toolkit we develop can be used to analyze such situations and propose remedies. Specifically, based on a simple mathematical model, we offer (...) a new argument in favour of quotas, explore implications for policy-making, and consider the wider philosophical significance of the problem. We show that in order to reach more equitable representations, quota-based recruitment may often be practically unavoidable. Assuming that members of groups in statistical minority are more likely to quit due to their marginalization, their proportions can stabilize at a low level, preventing a shift towards more equal representation and conserving the minority status of the subgroup. We show that this argument has important implications for addressing, preventing, and remediating the structural injustice of unfair representation. (shrink)