This paper is intended to be a summary of the author's views on the relationship between law and morality worked out over the past three decades in jurisprudence. The paper preliminarily clarifies the matter by isolating some lines of cleavage separating different questions askable about this relationship. With this done, the author argues for two theses. One, that judges are obligated to use morality in their decisions in particular cases; and two, that the morality judges are obligated to use in (...) their judicial reasonings, is best seen as the natural lawyer sees it, namely, as being part of the law that obligates judges in their role as judges. The author not only believes these theses to be true; he also thinks that these theses are practically important, in that their acceptance by judges makes for better judging. (shrink)

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

What do exclusionary reasons exclude? This is the main issue I address in this article. Raz appears to endorse what I label the “motivational” model of exclusionary reasons. He stresses that within the context of his theory of practical reasoning, exclusionary reasons are reasons not to be motivated by certain first-order reasons (namely, the first-order reasons which conflict with the first-order reasons that the exclusionary reasons protect). Some of his critics take him to be committed to another model of exclusionary (...) reasons which I label the “consideration” model. According to this model exclusionary reasons are reasons not to consider or think of the conflicting first-order reasons. I argue that Raz's account of the exclusionary function of decisions suggests a third model of exclusionary reasons which I label the “reconsideration” model. In the reconsideration model, exclusionary reasons are reasons not to reconsider the balance of first-order reasons. In this article I show how the reconsideration model differs from both the motivational and the consideration model and how it can account for the exclusionary function not only of decisions but also of personal rules and authoritative directives. (shrink)